Nucor Corp. v. U.S.

• Decision Date: 27 January 2010
• Docket Number: Court No. 07-00454.,Slip Op. 10-10.
• Citation: 675 F.Supp.2d 1340
• Parties: NUCOR CORPORATION, Plaintiff, and United States Steel Corporation and AK Steel Corporation, Plaintiff-Intervenors, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

675 F.Supp.2d 1340

NUCOR CORPORATION, Plaintiff, and United States Steel Corporation and AK Steel Corporation, Plaintiff-Intervenors, v. UNITED STATES, Defendant.

Slip Op. 10-10.

Court No. 07-00454.

United States Court of International Trade.

January 27, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wiley Rein LLP, Washington, DC (Daniel B. Pickard; Alan H. Price; Maureen E. Thorson; Lori E. Scheetz) for Plaintiff, Nucor Corporation.

Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, DC (James C. Hecht; John J. Mangan; Robert E. Lighthizer; Stephen P. Vaughn; Stephen J. Narkin) for Plaintiff-Intervenor, United States Steel Corporation.

King & Spalding, LLP, Washington, DC (Joseph W. Dorn; Jeffrey M. Telep) for Plaintiff-Intervenor, AK Steel Corporation.

Kelley Drye and Warren, LLP, (Kathleen W. Cannon; Paul C. Rosenthal; R. Alan Luberda) for Amicus, ArcelorMittal USA.

James M. Lyons, General Counsel; Andrea C. Casson, Assistant General Counsel, Office of the General Counsel, United States International Trade Commission (Marc A. Bernstein; Robin L. Turner), for Defendant, United States.

OPINION

CARMAN, Judge.

This matter comes before the Court following its decision in Nucor Corp. v. United States, 33 CIT ___, 605 F.Supp.2d 1361 (2009), in which the Court remanded a decision of the United States International Trade Commission ("ITC" or "Commission") which found that revocation of certain antidumping and countervailing duty orders would not be likely to lead to the continuation or recurrence of material injury to the domestic hot-rolled steel industry. See Hot-Rolled Steel Products From Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine ("Final Determination"), USITC Pub. 3956, Inv. Nos. 701-TA-404-408 and 731-TA-898-902 and 904-908 (Review) (Oct.2007) (PR 453) (CR 427).¹ This lawsuit arose from Plaintiff's and Plaintiff-Intervenors' challenges to the Commission's Final Determination, and ensuing Motion for Judgment on the Agency Record under USCIT Rule 56.2. The parties allege, inter alia, that the ITC's negative injury determination in the five-year sunset review of the countervailing duty order on hot-rolled steel products from South Africa and the antidumping duty orders on hot-rolled steel from Kazakhstan, Romania and South Africa was unsupported by substantial evidence. In its opinion, the Court found that the ITC had failed to provide an adequate explanation or substantial evidentiary support for certain findings relating to the likely volume, price effect, and impact of subject imports from the affected countries. As a result, the Court remanded the matter and instructed the Commission to reevaluate and explain more fully its negative injury determination in light of the Court's findings. See Nucor, 33 CIT at___, 605 F.Supp.2d 1361, 1381-82.

The Court now reviews the Commission's findings pursuant to the Court's remand² ("Remand Determination"), dated July 8, 2009, in which the ITC's revocation decision remains unchanged from the Final Determination. Plaintiff, Nucor Corporation ("Nucor") and Plaintiff-Intervenors, United States Steel Corporation ("U.S.Steel") and AK Steel Corporation ("AK Steel") (collectively "Plaintiffs" or "Domestic Producers") assert that the Remand Determination is also unsupported by substantial evidence or otherwise contrary to law and urge the Court to remand the matter for further consideration. The Commission, joined by Amicus, Arcelor-Mittal USA,³ argues that the decision should be sustained. For the reasons set forth below, the Court affirms the Remand Determination of the ITC.

I. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2006) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) (2006).

II. STANDARD OF REVIEW

Review of the Commission's redetermination pursuant to the Court's remand is conducted under the substantial evidence and in accordance with law standard, which is set forth in 19 U.S.C. § 1516a(b)(1)(B)(i) (2006) ("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."). 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)). "Substantial evidence 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) (internal citations and quotation marks omitted). The Court "must affirm a Commission determination if it is reasonable and supported by the record as a whole, even if some evidence detracts from the Commission's conclusion." Nippon Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed. Cir.2006) (internal citations and quotation marks omitted). There must be a "rational connection between the facts found and the choice made" in an agency determination if it is to be characterized as supported by substantial evidence and otherwise in accordance with law. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).

III. BACKGROUND

The Court presumes familiarity with its decision in Nucor, which provides background discussion on the five-year sunset review that Plaintiffs contest in this judicial proceeding. Below, the Court provides only that background information specific to the Remand Determination now before the Court.

In August and November of 2001, the Commission unanimously determined that the domestic hot-rolled steel industry was materially injured by reason of subsidized imports of hot-rolled steel from Argentina, India, Indonesia, South Africa, and Thailand, and by reason of less than fair value imports of hot-rolled steel from Argentina, China, India, Indonesia, Kazakhstan, the Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine. See Hot Rolled Steel Products From Argentina and South Africa, Inv. Nos. 701-TA-404 and 731-TA-898 and 905 (Final), USITC Pub. 3446 (Aug.2001) (PR 65); Hot-Rolled Steel Products From China, India, Indonesia, Kazakhstan, The Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine, Inv. Nos. 701-TA-405-408 and 731-TA899-904 and 906-908 (Final), USITC Pub. 3468 (Nov.2001) (PR 66) (collectively "Original Determinations"). Accordingly, between September 2001 and December 2001, the United States Department of Commerce ("Commerce") published countervailing duty orders on hot-rolled steel from Argentina, India, Indonesia, South Africa, and Thailand, as well as antidumping duty orders on hot-rolled steel from Argentina, China, India, Indonesia, Kazakhstan, the Netherlands, Romania, South Africa, Taiwan, Thailand and Ukraine. See Final Determination at I-2.

On August 1, 2006, the Commission initiated five-year sunset reviews to determine whether revocation of the countervailing duty and antidumping duty orders on hot-rolled steel products from Argentina, China, India, Indonesia, Kazakhstan, the Netherlands, Romania, South Africa, Taiwan, Thailand and Ukraine would likely lead to the continuation or recurrence of material injury to the domestic hot-rolled steel industry. See Hot-Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine, 71 Fed.Reg. 43,521 (Aug. 1, 2006) (PR 3). At the conclusion of the sunset reviews, the Commission determined that revocation of the antidumping and countervailing duty orders on hot-rolled steel from China, India, Indonesia Taiwan, Thailand and Ukraine would likely lead to the continuation or recurrence of material injury. See Final Determination at 3 (PR 453). However, the Commission determined that revocation of the orders on hot-rolled steel from Argentina, Kazakhstan, Romania and South Africa ("subject countries") would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.⁴ Id.

Domestic Producers subsequently initiated actions in this Court seeking review of the ITC determinations. On March 9, 2009, after briefing and oral argument the Court remanded the Commission's negative determinations in part, ordering the ITC to:

(1) reevaluate its flawed reasoning for the finding that ArcelorMittal companies and/or Mittal USA would limit subject imports from the subject countries; (2) reassess and further explain the basis for its findings that significant imports in any region of the country are likely to have a disruptive impact on the overall U.S. market, and that any pricing practices that would negatively impact Mittal USA's competitors are likely to also impact Mittal USA; (3) reassess and further explain the behavior of ArcelorMittal and its predecessor, the Ispat organization, with respect to their business practices in exporting to countries in which they maintain production facilities; (4) reassess and further explain evidence opposed to the ITC's volume determination, including excess capacity, export orientation of the subject countries' producers, attractiveness of the U.S. market, and capacity increases in alternative export markets; (5) reassess the potential price effects in accordance with its revised volume determination; and (6) reassess its likely impact analysis in accordance with its revised volume and price effects determinations, and account for and explain the poor performance of the domestic industry in the latter portion of the period of review.

See Nucor, 33 CIT at ___, 605 F. Supp 2d 1361, 1381-83.

On remand, the Commission reopened the record with respect to certain issues, inviting parties to offer additional information on matters relating to the remand and submit...