U.S. Steel Corp. v. U.S.
| Decision Date | 05 August 2008 |
| Docket Number | Slip Op. 08-82. Court No. 07-00271. |
| Citation | 572 F.Supp.2d 1334 |
| Parties | UNITED STATES STEEL CORPORATION, Plaintiffs, Maverick Tube Corp., Plaintiff-Intervenor, v. UNITED STATES, Defendant, and Dalmine, S.P.A., Siderica, S.A.I.C., JFE Steel Corporation, Nippon Steel Corporation, Sumitomo Metal Industries Ltd., Husteel Co., Ltd., Seah Steel Corp., Shell Exploration & Production, Co., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Skadden Arps Slate Meagher & Flom, LLP, Washington, DC (James C. Hecht, John J. Mangan, Robert E. Lighthizer, Stephen P. Vaughn), for Plaintiff United States Steel Corporation.
Williams, Mullen, Clark & Dobbins, Washington, DC (James R. Cannon, Jr., Dean A. Barclay, Francisco J. Orellana), for Plaintiff-Intervenor Maverick Tube Corp.
James M. Lyons, General Counsel; Neal J. Reynolds, Assistant General Counsel, Office of the General Counsel, United States International Trade Commission (Marc A. Bernstein), for Defendant United States.
White & Case, LLP, Washington, DC (Gregory J. Spak, Kristina Zissis), for Defendant-Intervenors Dalmine S.p.A., and Siderca S.A.I.C.
Robert C. Cassidy PLLC (Robert C. Cassidy, Jr.) and Wilmer, Cutler, Pickering, Hale & Dorr, LLP (John D. Greenwald), for Defendant-Intervenors JFE Steel Corporation, Nippon Steel Corporation, and Sumitomo Metal Industries, Ltd.
Troutman Sanders LLP (Donald B. Cameron, Brady W. Mills, Jeffrey S. Grimson, Julie C. Mendoza, Rudi W. Planert), for Defendant-Intervenors Husteel Co., Ltd., and SeAH Steel Corp.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre (Marc C. Hebert), for Defendant-Intervenor Shell Exploration and Production Co.
This case is before the Court on Plaintiffs motion for judgment on the agency record. Plaintiff United States Steel Corporation ("U.S.Steel") seeks judicial review of the U.S. International Trade Commission's ("ITC") second five-year review of the orders against Oil Country Tubular Goods ("OCTG") from Argentina, Italy, Japan, Korea, and Mexico. See Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, 72 Fed.Reg. 34480 (ITC, June 22, 2007) ("Five Year Review"). For the reasons that follow, the Court sustains the results of the ITC's second five-year review.
In 1995, the ITC determined that OCTG imports from Argentina, Italy, Japan, Korea, and Mexico were causing material injury to U.S. producers. Subsequently, the U.S. Department of Commerce published antidumping and countervailing duty orders on these imports.1
In 2001, the ITC completed its first five-year review of these orders. See Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, Inv. Nos. 701-TA-364, 731-TA711, 713-716 (first review), USITC Pub. 3434 (June 2001). In this review, the ITC cumulatively assessed the impact of revoking the collected orders and determined that revocation would likely cause material injury to U.S. industry. Accordingly, the orders were left in place.
In 2006, the ITC conducted its second five-year review of the orders. During this investigation, the ITC decided not to cumulate the impact of revoking all orders because it found that the subject imports would compete differently upon revocation. The ITC did, however, cumulate the Argentina, Italy, and Mexico OCTG orders. After its investigation, the ITC found that revoking the orders would not lead to the continuation or reoccurrence of material injury to the domestic industry. U.S. Steel challenges this determination arguing that: (1) the ITC abused its discretion in failing to cumulate the impact of revoking all orders; (2) the ITC's material injury determinations lack substantial evidence; and (3) the ITC failed to provide a fair and impartial hearing.2
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c) (2000). 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) (2000). Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). Moreover, the Court cannot substitute its judgment for that of the ITC "nor must the court `displace the [agency's] choice between two fairly conflicting views, even though the court would have justifiably made a different choice had the matter been before it de novo.'" Allegheny Ludlum Corp. v. United States, 30 CIT ___, ___, 475 F.Supp.2d 1370, 1374 (2006) (citations omitted).
Under 19 U.S.C. § 1675(c) (2000), the ITC reviews, every five years, whether revoking an order would be "likely to lead to the continuance or reoccurrence of dumping...."3 For this review, the ITC may cumulate the impact of revoking multiple orders if the statutory prerequisites are met. See 19 U.S.C. § 1675a(a)(7) (2000). No guidance, however, is given as to what factors the ITC should consider in making its cumulation determination. See Freeport Minerals Co. v. United States, 776 F.2d 1029, 1032 (Fed.Cir.1985). The ITC's discretion is not completely unfettered as its determination "[must] be predicated upon a judgment anchored in the language and spirit of the relevant statutes and regulations." See id. at 1032.
Here, the ITC based its cumulation decisions on the differences in the post-revocation competitive conditions the subject imports would likely face.4 Based on this factor, the ITC cumulated the impact of revoking the Argentina, Italy, and Mexico OCTG orders, but declined to cumulate these orders with the Japan and Korea OCTG orders, or to separately cumulate the Japan and Korea OCTG orders. U.S. Steel challenges these determinations claiming that the ITC abused its discretion in failing to address what it alleges is the essential purpose of cumulation: preventing the hammering effect caused by simultaneously revoking multiple orders.
The ITC determined that OCTG from Argentina, Italy, and Mexico would compete differently than OCTG from Japan and Korea upon revocation. The ITC based this decision primarily on the fact that Tenaris, a global manufacturer controlling all OCTG production in Argentina, Italy, and Mexico, had recently purchased Maverick Tube Corporation ("Maverick"), a large U.S. producer. According to U.S. Steel, this factor does not relate to the language and spirit of the relevant statutes. U.S. Steel's position, however, artificially limits the ITC's statutory discretion. The Court has repeatedly allowed the ITC to consider many factors related to differences in the likely post-revocation conditions of competition. See Allegheny Ludlum, 30 CIT at ___, 475 F.Supp.2d at 1377-78; Neenah Foundry Co. v. United States, 25 CIT 702, 155 F.Supp.2d 766 (2001).5 For example, in Olin Corporation -Brass Group v. United States, the ITC based its decision not to cumulate on the fact that one subject nation's principal producer had an affiliated relationship with a large U.S. producer, which the ITC determined would cause its exports to compete differently than those of the other subject nations upon revocation. See 28 CIT 29, 33-34 (2004). Here, Tenaris, the sole producer, made an even more significant commitment to domestic production than the producer in Olin by purchasing Maverick. The ITC relied on this purchase to support its conclusion that Argentinean, Italian, and Mexican OCTG will compete differently than OCTG from Japan and Korea.6 Accordingly, the ITC did not abuse its discretion in basing its decision not to cumulate all of the OCTG orders on its conditions of competition analysis.
The ITC also relied on its assessment of the relative conditions of competition as its basis for not cumulating the Japan and Korea OCTG orders. Specifically, the ITC relied on Japanese and Korean market behavior, including differences in market participation, production capabilities, and capacity utilization rates. U.S. Steel does not challenge these findings, but again argues that the ITC abused its discretion in relying on factors it views as unrelated to the purposes of cumulative analysis. This argument fails. Reliance on divergent historic or likely volume trends in cumulation decisions has been repeatedly affirmed by the Court, and the ITC did not abuse its discretion in relying on these considerations. See Allegheny Ludlum, 30 CIT at ___, 475 F.Supp.2d at 1377-78; Neenah Foundry, 25 CIT at 702, 155 F.Supp.2d at 766.
During a five-year review, the ITC will revoke an order unless it determines: (1) that dumping or subsidization is likely to continue; and (2) that revocation will lead to the continuation or reoccurrence of material injury within a reasonably foreseeable time. See 19 U.S.C. § 1675(d)(2)(B). In making this decision, the ITC is required to consider whether the "likely volume, price effect, and impact of imports of the subject merchandise on the industry" will be significant if an order is revoked. 19 U.S.C. § 1675a(a)(1)-(4). U.S. Steel argues that the ITC made several erroneous findings which it contends are not supported by substantial evidence. Essentially, U.S. Steel attacks the substantiality of the ITC's findings by offering its own...
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