Acciai Speciali Terni S.P.A. v. U.S.

• Decision Date: 02 October 2000
• Docket Number: Slip Op. 00-125.,Court No. 99-06-00363.
• Citation: 118 F.Supp.2d 1298
• Parties: ACCIAI SPECIALI TERNI S.p.A. and ACCIAI Speciali Termi USA, Plaintiffs, v. UNITED STATES, Defendant, and Allegheny Ludlum Corp., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

118 F.Supp.2d 1298

ACCIAI SPECIALI TERNI S.p.A. and ACCIAI Speciali Termi USA, Plaintiffs, v. UNITED STATES, Defendant and Allegheny Ludlum Corp., et al., Defendant-Intervenors.

Slip Op. 00-125.

Court No. 99-06-00363.

United States Court of International Trade.

October 2, 2000.

Hogan & Hartson L.L.P. (Lewis E. Leibowitz, Lynn G. Kamarck and Craig A. Lewis), for Plaintiffs.

Lyn M. Schlitt, General Counsel; James A. Toupin, Deputy General Counsel; U.S. International Trade Commission, Office of the General Counsel, (Karen Veninga Driscoll), for Defendant.

Collier Shannon Scott. PLLC (David A. Hartquist, Paul C. Rosenthal, Kathleen W. Cannon and R. Alan Luberda), for Defendant-Intervenors.

OPINION

WALLACH, Judge.

I INTRODUCTION

This case is before the court upon Plaintiffs' Motion For Judgment Upon The Agency Record Under USCIT R. 56.2, challenging the decision of the U.S. International Trade Commission ("ITC" or "Commission") in Certain Stainless Steel Plate From Belgium, Canada, Italy, Korea, South Africa, and Taiwan, Inv. Nos. 701-TA-376, 377, and 379 (Final) and 731-TA-788-793 (Final), USITC Pub. 3188 (May 1999), 64 Fed.Reg. 25,515 (May 12, 1999) ("Plate Final Determination"). Plaintiffs allege that the ITC committed both legal and factual errors in limiting the "domestic like product" to stainless steel flat-rolled products that are 4.75 mm. or more in thickness. According to Plaintiffs, the domestic like product should include all annealed and pickled stainless steel flat products, regardless of thickness. For the reasons stated below, the court rejects Plaintiffs' challenge and sustains the Plate Final Determination.

II BACKGROUND

In response to a petition by the affected U.S. industry, on May 28, 1998, the ITC published in the Federal Register a notice of its preliminary determination that there was "a reasonable indication" that a U.S. industry was materially injured by reason of dumped or subsidized imports of stainless steel plate in coils (i.e., stainless steel flat-rolled products 4.75 mm. or more in thickness) from Belgium, Canada, Italy, Korea, South Africa, and Taiwan. Certain Stainless Steel Plate From Belgium, Canada, Italy, Korea, South Africa, and Taiwan, 63 Fed.Reg. 29,251 (1998). Following subsequent findings by the International Trade Administration of the U.S. Department of Commerce ("Commerce") that such stainless steel plate was, in fact, being subsidized and/or dumped in the U.S. market, the ITC commenced the investigation that is the subject of Plaintiffs' challenge.¹

For purposes of its investigations, Commerce defined the dumped and/or subsidized merchandise as "flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled."² As in all injury determinations, in this case the ITC was required to define one or more "domestic like products," and one or more "domestic industries" producing those like products, that correspond to the imported merchandise identified by Commerce.³ See 19 U.S.C. § 1677(4)(A), (10) (1994) (defining terms). In its preliminary determination, the ITC examined a proposal by various respondents to define the domestic like product more broadly than the subject merchandise identified by Commerce, such that it would constitute all annealed and pickled stainless steel hot-rolled coiled products, regardless of thickness. Plate Prelim. Determ. at 10. Applying its traditional six-factor analysis,⁴ the Commission found that "[w]hile some factors support a single like product continuum, it is not clear where the dividing line occurs with these products." Id. at 13. Accordingly, the ITC decided not to include hot-rolied sheet and strip of less than 4.75 mm. in thickness (i.e., "sheet and strip") in its preliminary determination. Id. The Commission noted, however, that "we intend to explore in any final investigations whether hot-rolled ... sheet and strip should be included in the definition of the domestic like product." Id.

Subsequent to this preliminary determination, but prior to the Plate Final Determination, the ITC issued its preliminary determination in an investigation involving subject imports of stainless steel flat-rolled products of less than 4.75 mm. in thickness. See Certain Stainless Steel Sheet and Strip from France, Germany, Italy, Japan, the Republic of Korea, Mexico, Taiwan, and the United Kingdom, Inv. Nos. 701-TA-380-382 and 731-TA-797-804 (Preliminary), USITC Pub. 3118 (Aug.1998) ("Sheet and Strip Preliminary Determination" or "Sheet and Strip Prelim."). As in the Plate Preliminary Determination, various foreign respondents requested that the "domestic like product" cover all hot-rolled, annealed and pickled stainless steel products, regardless of thickness (i.e., sheet and strip and plate). Id. at 5 & n. 18. Although acknowledging, inter alia, its recent decision in the "plate" investigation, the Commission stated that it "is not bound by prior determinations concerning similar imported products." Id. at 6 n. 19. Accordingly, the ITC applied anew its six factor analysis, finding that

Although all flat stainless products share similar chemical compositions and properties, the industry has established a specific thickness-based distinction between plate on the one hand, and sheet and strip, on the other. To a large degree, these distinctions correspond to different end uses and channels of distribution, and result in limited interchangeability. While sheet and plate generally are produced by similar, and sometimes, common initial manufacturing processes and equipment, virtually all sheet and strip undergoes the more extensive additional processing of cold-rolling before being sold for end use. The cold-rolling process used to finish sheet and strip entails the use of different employees and equipment from that used for hot-rolling, and is usually performed in different facilities, and in some instances, by different producers. The additional processing adds substantial value to the sheet and strip and results in different pricing practices from those used for plate. For these reasons, we do not include plate in our definition of the domestic like product.

Id. at 9. In a concluding footnote, the Commission related these findings to its Plate Preliminary Determination, noting that both investigations addressed "virtually the same like product issue" and that "[a]dditional information in the record of the instant investigations further supports the Commission's preliminary conclusion in Plate not to expand the like product to include [stainless steel sheet and strip] in that case, and vice versa in these preliminary investigation phases." Id. at 9 n. 51.

Approximately nine months after issuing its Sheet and Strip Preliminary Determination, the Commission released the Plate Final Determination at issue here. Again addressing the domestic like product question, the ITC noted that after "performing a detailed comparison of stainless steel plate in coils and stainless sheet and strip applying the traditional like product factors" in the Sheet and Strip Preliminary Determination, it "reaffirmed its preliminary determination from the instant investigation that [plate and sheet and strip] are not the same domestic like product." Plate Final Determination at 5. After summarizing its Sheet and Strip Preliminary Determination findings in a footnote, the Commission stated that "[t]here is no new information in the record of these investigations that leads us to question the Commission's reasoning in the [Sheet and Strip Prelim.]." Id. Thus, "for the reasons set forth in the [Sheet and Strip Prelim.]," the ITC concluded that the domestic like product did not include stainless steel sheet and strip. Id.

Plaintiffs challenge this finding on both legal and factual grounds, arguing, inter alia, that (a) the ITC failed to broadly define the "like product" and attached too much weight to the scope of the imported merchandise defined by Commerce; (b) the ITC improperly used facts developed in the Sheet and Strip Preliminary Determination to support its like product determination; (c) the ITC abused its discretion in failing to collect essential data from U.S. purchasers; (d) the facts identified by the ITC do not otherwise show a clear dividing line between stainless steel plate and stainless steel sheet and strip. Each of these arguments is addressed below.

III STANDARD OF REVIEW

In reviewing the Plate Final Determination, the 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) (1994). Substantial evidence is something more than a "mere scintilla," and must be enough evidence to reasonably support a conclusion. Primary Steel, Inc. v. United States, 17 CIT 1080, 1085, 834 F.Supp. 1374, 1380 (1993); Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed.Cir. 1987). "As long as the agency's methodology and procedures are reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency's conclusions, the court will not impose its own views as to the sufficiency of the agency's investigation or question the agency's methodology." Ceramica Regiomontana, S.A., 10 CIT at 404-5, 636 F.Supp. at 966.

IV ANALYSIS

A

PLAINTIFFS' HAVE NOT IDENTIFIED ANY LEGAL ERRORS IN THE COMMISSION'S DETERMINATION.

In their initial brief, Plaintiffs argue that the ITC's like product determination was not in accordance with law for two reasons. First, Plaintiffs assert that the narrow "domestic like product" definition adopted by the ITC is inconsistent with the relevant statute (19 U.S.C. § 1677(10)), judicial precedent, and the Commission's own practice. See Plaintiffs' Brief In Support Of Motion For...