Nippon Steel Corp. v. U.S.
| Decision Date | 09 May 2006 |
| Docket Number | Slip Op. 06-69. Court No. 01-100103. |
| Citation | 433 F.Supp.2d 1336 |
| Parties | NIPPON STEEL CORP., Kawasaki Steel Corp., JFE Steel Corp., Thyssenkrup Acciai Speciali Terni S.p.A, and Acciai Speciali Terni (USA), Inc., Plaintiffs, v. UNITED STATES, Defendant, and Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, Zanesville Armco Independent Union, and United Steel Workers of America, AFL-CIO/CLC, Deft.-Intervenors. |
| Court | U.S. Court of International Trade |
Gibson, Dunn & Crutcher, LLP, Washington, DC (Gregory Christopher Gerdes and Joseph H. Price), for plaintiffs Nippon Steel Corporation and JFE Steel Corporation.
Hunton & Williams, LLP (Robert H. Huey), for plaintiffs Kawasaki Steel Corporation and JFE Steel Corporation.
Hogan & Hartzon, LLP, Washington, DC (Lewis E. Leibowitz), for plaintiffs ThyssenKrupp Acciai Speciali Terni S.p.A. and Acciai Speciali Terni (USA), Inc.
James M. Lyons, General Counsel, U.S. International Trade Commission (Gracemary R. Roth-Roffy and Mark B. Rees), for defendant.
Collier, Shannon, Scott, PLLC, Washington, DC (Kathleen W. Cannon), for defendant-intervenors.
This consolidated action1 is before the court following remand to the United States International Trade Commission ("ITC" or the "Commission") of its affirmative injury determination contained in Grain-Oriented Silicon Electrical Steel From Italy and Japan, Invs. Nos. 701-TA-355 and 731-TA-659-660 (Review) (Second Remand), USITC Pub. 3680 (Mar.2004) ("Second Remand Determination"). See Nippon Steel Corp. v. United States, 29 CIT ___, 391 F.Supp.2d 1258 (2005) ("Nippon V"). Pursuant to remand, the ITC issued its third remand determination in Grain-Oriented Silicon Electrical Steel From Italy and Japan, Invs. Nos. 701-TA-355 and 731-TA-659-660 (Review) (Third Remand) USITC Pub. 3798 (September 13, 2005) ("Third Remand Determination"), finding that revocation of the subject antidumping and countervailing duty orders would not likely lead to a continued or recurring material injury to the domestic industry within the foreseeable future. Defendant-intervenors, each participants in the domestic grain-oriented silicon electrical steel ("GOES") industry, challenge this negative determination. Jurisdiction lies under 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I). For the reasons set forth below, the court affirms the ITC's Third Remand Determination.
The facts of this case have been adequately set forth in the court's previous five opinions. See Nippon V, 29 CIT at ___, 391 F.Supp.2d at 1258; Nippon Steel Corp. v. United States, 27 CIT ___, 301 F.Supp.2d 1355 (2003); Nippon Steel Corp. v. United States, 26 CIT 1416 (2002) (); Nippon Steel Corp. v. United States, 26 CIT 1025, 239 F.Supp.2d 1367 (2002); Nippon Steel Corp. v. United States, 25 CIT 1408 (2001) (). In Nippon V, the court remanded to the ITC its findings regarding the likely volume and impact of Japanese and Italian imports of GOES on the United States market in the event that the existing orders covering GOES were revoked. Id. at ___, ___, 391 F.Supp.2d at 1280, 1284; see also 19 U.S.C. § 1675a(a)(2), (4) (2000). Pursuant to the court's instructions, the ITC re-opened the record and distributed supplemental questionnaires concerning the likely volume and impact issues. On August 29, 2005, after the ITC received all responses to those questionnaires, a vote was taken by five of the six sitting commissioners. By a vote of three to two, the Commission found that revoking the orders would likely not lead to a continued or recurring material injury to the domestic industry. See Third Remand Determination at 1. This determination was based largely on the Commission's finding that revocation of the orders would not lead to a significant increase in the likely volume of subject imports entering the United States. See id. at 6. This new volume finding was based, in turn, on the new evidence elicited by the supplemental questionnaires. After factoring this new volume finding into its analysis, the Commission determined that the likely adverse price effects of the subject imports would fail to attain a significant enough level to preclude revocation of the orders. See id. at 9. The new volume finding also led the Commission to conclude that any volume and price effects of the subject imports would likely not have a significant adverse impact on the domestic industry within a reasonably foreseeable time. See id. at 10. Defendant-intervenors now contest these most recent findings by asserting that: (1) the Third Remand Determination was invalid because it was not reached by the complete Commission membership; (2) revocation of the GOES orders would likely result in a significant increase in the volume of subject imports; (3) revocation of the GOES orders would likely have significant adverse price effects on the domestic like product; and (4) revocation of the GOES orders would likely have a significant adverse impact on the domestic GOES industry. See generally Def.-Ints.' Comments on ITC Third Remand 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). "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. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). It "requires `more than a mere scintilla,' but is satisfied by `something less than the weight of the evidence.'" Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir.2004) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir. 1984); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984)). The existence of substantial evidence is determined "by considering the record as a whole, including evidence that supports as well as evidence that `fairly detracts from the substantiality of the evidence.'" Huaiyin (30), 322 F.3d at 1374 (quoting Atl. Sugar, Ltd., 744 F.2d at 1562). The possibility of drawing two equally justifiable, yet inconsistent conclusions from the record does not prevent the agency's determination from being supported by substantial evidence. See Consolo v. Fed Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966); see also Altx, Inc., 370 F.3d at 1116.
Defendant-intervenors initially insist that the Third Remand Determination must again be remanded because the determination, having been reached by only five of the six sitting commissioners, was not the product of valid Commission action. See Def.-Ints.' Comments at 1-8.
At the time this matter was remanded to the Commission for the third time, that body was undergoing a change in membership. See Third Remand Determination at 1 n. 3, 4; see also Def.-Ints.' Comments at 6. On September 6, 2005, Commissioner Marcia E. Miller left the ITC and, on the same date, she was replaced by Commissioner Shara L. Aranoff. See Def.-Ints.' Comments at 6. Commissioner Miller, however, was still a sitting commissioner at the time the vote on the Third Remand Determination was taken. See Def.-Intl: Comments at Ex. 2; see also Third Remand Determination at 1 n. 3. Despite being present, though, Commissioner Miller did not participate in the vote.2
Defendant-intervenors assert that "remands are to the Commission as an institution and not to individual commissioners." Def.-Ints.' Comments at 2; see also Asociacion Colombiana de Exportadores de Flores v. United States, 12 CIT 1174, 1176 n. 2, 704 F.Supp 1068, 1070 n. 2 (1988) (). They understand this principle to mean that a decision reached by a vote of less than the complete Commission membership, where complete Commission participation is possible, renders the resulting determination invalid. Specifically, defendant-intervenors argue that:
[D]uring the entire period encompassed by the Court's remand — June 15, 2005, when this Court issued its decision [Nippon V], through September 13, 2005, when the Commission issued its [Third Remand Determination] — there was a full composition to the International Trade Commission consisting of all six members. Even though the composition of the Commission changed during this period, at no time were less than six Commissioners officially members of the Commission .... [Thus,] [t]he remand decision here, reflecting the views of only five of the six Commissioners, is not the "institutional" response of all members of the Commission contemplated by the Courts....
Def.-Ints.' Comments at 6, 7. Defendant-intervenors bolster their argument by claiming that Commissioner Miller's abstention may have affected the vote's outcome. They cite Commissioner Miller's past affirmative votes as evidence that her participation could have produced a 3-3 tie in the voting, which consequently would have required the ITC to make an affirmative determination.3 See 19 U.S.C. § 1677(11); see also Def.-Ints.' Comments at 7 ().
While acknowledging that "remands are generally directed at the Commission as a whole and therefore require an institutional response from the Commission," the ITC argues that voting participation by all sitting commissioners is not mandated in every investigation. Def. USITC's Resp. to Pls.' Objections to the USITC's Third Remand Determination ("Def.'s Resp.") at 3. In support of this position,...
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