Steel Authority of India, Ltd. v. U.S.

• Citation: 146 F.Supp.2d 900
• Decision Date: 22 May 2001
• Docket Number: SLIP OP. 01-59.,No. 00-03-00096.,00-03-00096.
• Parties: STEEL AUTHORITY OF INDIA, LTD., Plaintiff, v. UNITED STATES, Defendant and Bethlehem Steel Corporation; U.S. Steel Group, a Unit of USX Corporation; IPSCO Steel Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

Page 900

146 F.Supp.2d 900

STEEL AUTHORITY OF INDIA, LTD., Plaintiff, v. UNITED STATES, Defendant and Bethlehem Steel Corporation; U.S. Steel Group, a Unit of USX Corporation; IPSCO Steel Inc., Defendant-Intervenors.

SLIP OP. 01-59.

No. 00-03-00096.

United States Court of International Trade.

May 22, 2001.

COPYRIGHT MATERIAL OMITTED

John D. Greenwald, Robert C. Cassidy, Jr., Washington, D.C., Wilmer, Cutler & Pickering, for Plaintiff.

Lyn M. Schlitt, James A. Toupin, Michael Haldenstein, U.S. International Trade Commission, Counsel, Washington, D.C., for Defendant.

Roger B. Schagrin, Washington, D.C., Schagrin Associates, for Defendant-Intervenor IPSCO Steel Inc.

Robert E. Lighthizer, John J. Mangan, Washington, D.C., Skadden, Arps, Slate, Meagher & Flom LLP, for Defendant-Intervenor Bethlehem Steel Corporation and U.S. Steel Group, a Unit of USX Corp.

OPINION

POGUE, Judge.

This action is before the court on Plaintiff's motion for judgment on the agency record pursuant to USCIT Rule 56.2. Plaintiff, Steel Authority of India, Ltd. ("SAIL"), challenges the final determination of the U.S. International Trade Commission ("Commission" or "ITC") that an industry in the United States is materially injured by reason of imports from India sold at less than fair value ("LTFV").¹ Certain Cut-to-Length Steel Plate from France, India, Indonesia, Italy, Japan and Korea, USITC Pub. No. 3273, Inv. Nos. 701-TA-387-391 & 731-TA-816-821 (Jan.2000) (final determ.) ("Final Determination").² Specifically, SAIL objects to the Commission's finding that imports from India "compete with each other and with domestic like products" within the meaning of Section 771 of the Tariff Act of 1930, as amended. 19 U.S.C. § 1677(7)(G)(i), (H)(1994); see also Pl.'s Mem. Supp. Mot. J. Agency R. at 2 ("SAIL Brief"). The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(B)(i).

We conclude that the Commission's choice of a three-year period of investigation for its review of SAIL's presence in the U.S. market is reasonable. We also find substantial evidence in the record to support the Commission's "compete with" finding. Finally, we affirm the Commission's conclusion that imports from India were not negligible. Accordingly, we deny Plaintiff's motion and sustain the Commission's determination.

Background

On February 16, 1999, Bethlehem Steel Corporation, Gulf States Steel, Inc., IPSCO Steel Inc., Tuscaloosa Steel Corporation, the United Steelworkers of America, and the U.S. Steel Group (collectively "Petitioners"), filed a petition with the Commission and the Department of Commerce ("Commerce") alleging that imports of certain cut-to-length ("CTL") carbon steel plate were being or were likely to be sold in the United States at LTFV and that such imports were materially injuring an industry in the United States.³ Commerce, on the Petitioners' request, initiated an investigation of imports of CTL carbon steel plate from the Czech Republic, France, India, Indonesia, Italy, Japan, the Republic of Korea, and the Former Yugoslav Republic of Macedonia. Initiation of Antidumping Duty Investigations: Certain Cut-To-Length Carbon-Quality Steel Plate From the Czech Republic, France, India, Indonesia, Italy, Japan, the Republic of Korea, and the Former Yugoslav Republic of Macedonia, 64 Fed.Reg. 12,959 (Dep't Commerce March 16, 1999) (initiation notice).

The ITC, on February 10, 2000, issued its finding that an industry was materially injured by reason of dumped and subsidized imports from France, India, Indonesia, Italy, Japan, and Korea. See Certain-Cut-to-Length Steel Plate From the Czech Republic, France, India, Indonesia, Italy, Japan, and Korea, 65 Fed.Reg. 6,624 (Dep't Commerce Feb. 10, 2000). In the course of its analysis, the ITC determined that imports from India should be cumulated with imports from the other named countries in order to appropriately identify their effect on the domestic industry. See Final Determination at 18.⁴ As required by the statute, the ITC found that the imports from India "compete[d] with each other and the domestic like product" during the period of investigation.⁵ Id.; 19 U.S.C. § 1677(7)(G)(i).

Standard of Review

The court will sustain the ITC's determination unless it is "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." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). It is not the function of the court to reweigh the evidence or to impose its own reasoning on the agency, even if the court would have reached a different conclusion. See Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

Discussion

A. Cumulation Analysis

1. Statutory Interpretation

The Tariff Act of 1930, as amended, directs the ITC "to make a final determination of whether ... an industry in the United States ... is materially injured ... by reason of [subject] imports, or sales ... for importation[.]" 19 U.S.C. § 1673d(b)(1994). In order to show that the material injury occurred "by reason of" the subject imports, the ITC is required to show a causal connection between the subject imports and the material injury. See Gerald Metals, Inc. v. United States, 132 F.3d 716, 722 (Fed.Cir.1997). When establishing such a nexus, the Commission considers: "1) the volume of [the subject] imports, 2) the effect of [the subject] imports on prices of like domestic products, and 3) the impact of [the subject] imports on domestic producers of like products." USX Corp. v. United States, 11 CIT 82, 84, 655 F.Supp. 487, 489 (1987).⁶

The statute further requires the Commission to "cumulatively assess the volume and effect of imports of like products from all countries as to which" petitions were filed, or as to which investigations were self-initiated by Commerce, on the same day, if such imports "compete with each other and with domestic like products in the United States market." 19 U.S.C. § 1677(7)(G)(i). Cumulation allows the ITC to "consider the impact of imports from more than one country on the domestic industry...." Goss Graphic Sys., Inc. v. United States, 22 CIT ___, ___, 33 F.Supp.2d 1082, 1085-86 (1998), aff'd, 216 F.3d 1357 (Fed.Cir.2000). This analysis "recognizes that a domestic industry can be injured by a particular volume of imports and their effects regardless of whether those imports come from one source or many sources." Statement of Administrative Action ("SAA"), H.R.Rep. No. 103-826, 103rd Cong. Sess. at p. 847, 1994 U.S.Code Cong. & Admin.News at pp. 3773, 4181, accompanying the Uruguay Round Agreements Act.⁷ The ITC determines whether there is a reasonable indication that cumulated imports cause or threaten to cause material injury in the market. See 19 U.S.C. § 1677(7)(G).

The settled practice of the Commission, approved by this court, is to make its "compete with" determination by considering the products' fungibility, the similarity of their geographic markets, the channels of distribution, and their simultaneous presence in the market. See Fundicao Tupy S.A. v. United States, 12 CIT 6, 10-11, 678 F.Supp. 898, 902 (1988), aff'd, 859 F.2d 915 (Fed.Cir.1988). These factors, however, are neither exclusive nor determinative. See Goss Graphic Sys., Inc., 22 CIT at ___, 33 F.Supp.2d at 1086 (internal citations omitted). Although "[c]ompletely overlapping markets are not required" to satisfy the "compete with" element, the Commission must determine that "a `reasonable overlap' [of] competition" exists between imports from different countries. Wieland Werke, AG v. United States, 13 CIT 561, 563, 718 F.Supp. 50, 52 (1989); Florex v. United States, 13 CIT 28, 38, 705 F.Supp. 582, 592 (1989).

SAIL contends that the Commission, in the course of its cumulation analysis, misconstrued the "compete with" clause in section 1677(7)(G)(i). SAIL argues that both the text and the structure of the statute preclude the Commission from using the full period of investigation when making its cumulation determination. See SAIL Brief at 10. Instead, SAIL claims that the plain meaning of the statute requires the ITC to apply the "compete with" provision as limiting the time frame for cumulation to the period of material injury.⁸ Id. at 10-11 (citing Black's Law Dictionary 284 (6th ed.1990)); see also 19 U.S.C. § 1677(7)(G)(i), (H). SAIL argues that the use of the present tense in the statute is strong linguistic evidence of Congressional intent to limit cumulation to presently competing imports; that is, to the period of material injury.⁹ See SAIL Brief at 11.

The determination of whether the agency's statutory interpretation is in accordance with law follows the two-step analysis formulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first step is to investigate as a matter of law "whether Congress's purpose and intent on the question at issue is judicially ascertainable." Timex V.I., Inc. v. United States, 157 F.3d 879, 881 (Fed.Cir.1998). "To ascertain whether Congress had an intention on the precise question at issue, [the court] employ[s] the `traditional tools of statutory construction.'" Id. at 882 (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). The first tool of statutory construction is the plain meaning of the text, which is the final expression of Congress's intent. See id. Beyond the statute's text, the tools of statutory construction include the statute's legislative history, the statute's structure, and the canons of statutory construction. See id. (citing Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 469-78, 117 S.Ct. 913, 137...