Nucor Corp. v. U.S.
| Decision Date | 09 March 2009 |
| Docket Number | Court No. 07-00454.,Slip Op. 09-16. |
| Citation | 605 F.Supp.2d 1361 |
| Parties | NUCOR CORPORATION, Plaintiff, and United States Steel Corporation, AK Steel Corporation, Plaintiff-Intervenors, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Wiley Rein LLP, (Daniel B. Pickard) for Plaintiff, Nucor Corporation.
Skadden Arps Slate Meagher & Flom, LLP, (James C. Hecht; John J. Mangan; Robert E. Lighthizer; Stephen P. Vaughn) for Plaintiff-Intervenor, United States Steel Corporation.
King & Spalding, LLP, (Joseph W. Dorn; Elizabeth E. Duall; Jeffrey M. Telep) for Plaintiff-Intervenor, AK Steel Corporation.
James M. Lyons, General Counsel; Andrea C. Casson, Assistant General Counsel, Office of the General Counsel, United States International Trade Commission (Robin L. Turner), for Defendant, United States.
This matter is before the Court on motions for judgment upon the agency record brought by plaintiff Nucor Corporation ("Nucor"), plaintiff-intervenor, AK Steel Corporation ("AKS"), and plaintiff-intervenor United States Steel Corporation ("USS") (collectively, "Plaintiffs" or "Domestic Producers"), pursuant to USCIT Rule 56.2. Plaintiffs challenge the negative determinations by the United States International Trade Commission ("Commission" or "ITC") in the five-year sunset reviews pursuant to 19 U.S.C. § 1675(c)(1)1 of the countervailing duty order on hot-rolled steel products from South Africa and revocation of the antidumping duty orders on hot-rolled steel products from Kazakhstan, Romania, and South Africa.
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and (B)(iii) (2000).
In August and November 2001, the Commission determined that an industry in the United States was materially injured by reason of subsidized imports of hot-rolled steel products from Argentina, India, Indonesia, South Africa, and Thailand, and by reason of less than fair value imports from hot-rolled steel products from Argentina, China, India, Indonesia, Kazakhstan, 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").2 During the period September through December 2001, the United States Department of Commerce ("Commerce") published countervailing duty ("CVD") orders on Argentina, India, Indonesia, South Africa, and Thailand, and antidumping duty ("AD") orders on Argentina, China, India, Indonesia, Kazakhstan, Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine. See Hot-Rolled Steel Products From Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine, USITC Pub. 3956, Inv. Nos. 701-TA-404-408 and 731-TA-898-902 and 904-908, at 1-2 (review) (Oct.2007)(PR 453).
On August 1, 2006, the Commission instituted five-year reviews of the orders on hot-rolled steel products from Argentina, China, India, Indonesia, Kazakhstan, Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine ("subject countries"). See 71 Fed.Reg. 43,521-23 (August 1, 2006) (PR 3).
The final determinations were issued by the Commission on October 25, 2007 and were published in the Federal Register on October 31, 2007. See Hot Rolled Steel Products From Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine, 72 Fed.Reg. 61,676 (Oct. 31, 2007) (PR 441). The determinations and views of the Commission are contained in Hot-Rolled Steel Products From Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine ("Final Determination" or "Views"), USITC Pub. 3956, Inv. Nos. 701-TA-404-408 and 731-TA-898-902 and 904-908 (review) (Oct.2007) (PR 453) (CR 427).
In the Final Determination, the Commission determined, inter alia, that revocation of the orders against China, India, Indonesia, Taiwan, Thailand, and Ukraine would be likely to lead to the continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time.3 See Views at 3 (PR 453). With respect to the orders against Argentina, Kazakhstan, Romania, and South Africa, the Commission determined that their revocation would not be likely to lead to the continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time. See id.
In the instant consolidated appeal, each Plaintiff challenges aspects of the ITC's negative determinations for Kazakhstan, Romania, and South Africa.4 See Pl.'s R. 56.2 Mot. Summ. J. Agency R. ("Nucor's Mem."); Mem. Supp. Mot. J. Agency R. AKS ("AKS's Mem."); Mem. Supp. Mot. J. Agency Rule 56.2 USS ("USS's Mem."). The Commission responds that its negative sunset determinations are supported by substantial evidence and otherwise in accordance with law, and requests that the Court affirm them. See Mem. Def. ITC Opp'n Pls.' Mot. J. Agency R. ("ITC Mem.").
When reviewing ITC determinations in sunset reviews "[t]he 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 more than a mere scintilla." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). "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., 305 U.S. at 229, 59 S.Ct. 206). In determining the existence of substantial evidence, a reviewing 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.'" Huaiyin, 322 F.3d at 1374 (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984)).
The Commission and Commerce are required to conduct sunset reviews five years after publication of an antidumping duty or countervailing duty order or a prior sunset review. See 19 U.S.C. § 1675(c)(1). In a five-year sunset review of an antidumping duty or countervailing duty order, the Commission determines "whether revocation of an order . . . would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time." 19 U.S.C. § 1675a(a)(1).
In making its determination, the ITC must "consider the likely volume, price effect, and impact of imports of the subject merchandise on the [domestic] industry if the order is revoked." Id. Specifically, it must take into account:
(C) whether the industry is vulnerable to material injury if the order is revoked . . ., and
(D) in an antidumping proceeding under section 1675(c) of this title, the findings of the administering authority regarding duty absorption under section 1675(a)(4) of this title.
In a sunset review, the Commission has discretion to cumulatively assess the volume and effect of subject imports from several countries for purposes of the material injury analysis, so long as certain threshold requirements are met.5 See 19 U.S.C. § 1675a(a)(7); Statement of Administrative Action ("SAA") accompanying H.R.Rep. No. 103-826(II), at 887, reprinted in 1994 U.S.C.C.A.N. 4040, 4212 (). Those threshold requirements are that: (1) the five-year reviews commenced under section 1675(c) are initiated on the same day,6 (2) the subject imports to be cumulated would be likely to compete with each other and with domestic like products in the United States market ("reasonable overlap of competition prong"); and (3) the Commission has not determined that the subject imports to be cumulated are likely to have no discernible adverse impact on the domestic industry ("no discernible adverse impact prong").7 See 19 U.S.C. § 1675a(a)(7); Allegheny Ludlum Corp. v. United States, 30 CIT 1995, 1998-99, 475 F.Supp.2d 1370, 1375 (2006).
Pursuant to this statutory authority, the Commission determined to cumulate subject imports from Kazakhstan, Romania, and South Africa ("Mittal Countries") with each other, and to separately cumulate subject imports from China, India, Indonesia, Taiwan, Thailand, and Ukraine ("Other Cumulated Countries") with each other.8 See Views at 20 (PR 453). In so doing, the Commission made the following subsidiary findings: (1) the no discernible adverse impact exception to cumulation does not apply to the subject countries with the exception of Argentina; (2) there would likely be a reasonable overlap of competition between subject imports from each country and the domestic like product as well as among subject imports from each country;9 and (3) based on the existence of unique conditions of competition, subject imports from the Mittal Countries would not be likely to compete under similar conditions of competition with the subject imports from the Other Cumulated Countries. See id.
Plaintiffs do not challenge the first two subsidiary findings, but dispute the third subsidiary finding...
To continue reading
Request your trial
-
Nucor Corp. v. U.S.
...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......