U.S. Steel Group v. U.S., Slip Op. 00-156.

• Decision Date: 21 November 2000
• Docket Number: Court No. 99-08-00523.,Slip Op. 00-156.
• Citation: 123 F.Supp.2d 1365
• Parties: U.S. STEEL GROUP, a Unit of USX Corporation, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

123 F.Supp.2d 1365

U.S. STEEL GROUP, a Unit of USX Corporation, et al., Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 00-156.

Court No. 99-08-00523.

United States Court of International Trade.

November 21, 2000.

Dewey Ballantine LLP, Washington, DC (Alan Wm. Wolff, Michael H. Stein) and Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC (Robert E. Lighthizer, John J. Mangan) for Plaintiffs.

David W. Ogden, Assistant Attorney General, David M. Cohen, Director, Lucius B. Lau, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Myles S. Getlan, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel, Washington, DC, for Defendant.

OPINION

POGUE, District Judge.

This matter is before the Court on the motion of U.S. Steel Group, a Unit of USX Corporation; Bethlehem Steel Corporation; Ispat Inland, Inc.; LTV Steel Company, Inc.; and National Steel Corporation (collectively "Plaintiffs"), for Judgment Upon the Agency Record pursuant to USCIT R. 56.2. Plaintiffs challenge the determination of the U.S. Department of Commerce (hereinafter "Commerce" or "the Department") to suspend the antidumping investigation of Russian steel imports pursuant to a suspension agreement entered into with the Ministry of Trade of the Russian Federation (hereinafter "MOT"). See Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation, 64 Fed.Reg. 38,642 (Dep't Commerce 1999)(suspension antidumping duty investig.)("Steel From Russia"). Defendant opposes Plaintiffs' motion.¹

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994).

Background

On September 30, 1998, Plaintiffs filed a petition with Commerce alleging that certain hot-rolled steel products from Russia were being sold in the United States at less than fair value ("LTFV"). See Petition From Law Firm of Dewey/Skadden/Schagrin to Sec of Commerce (P.R. Doc. No. 2)(Sept. 30, 1998).² On October 22, 1998, Commerce initiated an antidumping duty investigation. See Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil, Japan, and the Russian Federation, 63 Fed.Reg. 56,607 (Dep't Commerce 1998)(initiation antidumping investig.). On November 25, 1998, the U.S. International Trade Commission ("ITC") published its preliminary determination, concluding that there was a reasonable indication that the domestic steel industry was threatened with material injury by Russian steel imports. See Certain Hot-Rolled Steel Products From Brazil, Japan, and Russia, 63 Fed.Reg. 65,221 (USITC 1999)(prel.determ.).

On February 22, 1999, Commerce and MOT initialed a proposed agreement to suspend the antidumping duty investigation of Russian steel imports. See Pl.'s Mem. Supp. Mot. J. Agency R., at App. 4 ("Pl.'s Br."). At Commerce's invitation, see Letter to Interested Parties Requesting Comments on Proposed Suspension Agreement (P.R. Doc. No. 418)(Feb. 23, 1999), Plaintiffs submitted comments on the proposed agreement, see Letter From Law Firm of Skadden/Dewey/Shagrin Submitting Comments on Proposed Suspension Agreement (P.R. Doc. No. 424)(Apr. 5, 1999). After further negotiations with MOT, Commerce changed the proposed agreement somewhat, see Pl.'s Br. at 4, and on July 12, 1999, entered into a suspension agreement pursuant to 19 U.S.C. § 1673c(l). See Steel From Russia, 64 Fed.Reg. at 38,643 (App.I)(hereinafter "Agreement").

Prior to entering into the suspension agreement, on February 25, 1999, Commerce made a preliminary determination that Russian hot-rolled steel was being, or was likely to be sold in the U.S. at LTFV. See Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation, 64 Fed.Reg. 9,312 (Dep't Commerce 1999)(prel.determ.). On July 7, 1999, the Plaintiffs requested that Commerce continue its antidumping duty investigation of Russian steel. See Letter From Law Firm of Dewey/Skadden/Schagrin to Sec of Commerce (P.R. Doc. No. 375)(July 7, 1999). On July 19, 1999, Commerce published its final determination of sales at less-than-fair value, see Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation, 64 Fed.Reg. 38,626 (Dep't Commerce 1999)(final determ.), and also published notice that it was suspending the investigation in light of the Agreement, see Steel From Russia, 64 Fed.Reg. at 38,642. On August 27, 1999, the ITC published its final determination, confirming that the domestic industry was being materially injured by reason of imports of Russian steel. See Certain Hot-Rolled Steel Products From Brazil and Russia, 64 Fed.Reg. 46,951 (USITC 1999)(final determ.).

Plaintiffs allege that Commerce unlawfully entered into the Agreement because the terms of the Agreement fail to meet two of the requirements of the governing statute. See Pl.'s Br. at 2. Pursuant to 19 U.S.C. § 1673c(l), Commerce may enter into a suspension agreement with a non-market economy only if, first, the agreement is in the public interest and may be effectively monitored,³ and second, the agreement prevents price suppression or undercutting. See 19 U.S.C. § 1673c(l)(1) (1994). The notice of Commerce's decision to suspend the investigation does not itself contain an analysis of the statutory requirements or the evidentiary basis for the agency's decision. Rather, Commerce adopted, and incorporated by reference, two "Memoranda": the "Price Suppression Memorandum" (P.R. Doc. No. 396)(July 12, 1999), and the "Public Interest Memorandum" (P.R. Doc. No. 426)(July 12, 1999). It is these memoranda that provide the basis for the agency's decision.

Standard of Review

Commerce's determination to suspend the antidumping duty investigation at issue here is reviewable pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iv). See 19 U.S.C. § 1516a(a)(2)(B)(iv) (1994). The court must sustain Commerce's final 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).

In determining whether Commerce's interpretation and application of the anti-dumping statute is in accordance with the law, "[f]irst, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)(citing several pre-1984 cases). If the statute is ambiguous, then the court must consider whether the format in which the interpretation is expressed is a format that carries the "force of law." See Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000). If it is, then the court asks whether the agency's interpretation of the statute is reasonable. See Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If the agency's interpretation of an ambiguous statute is expressed in a format that does not carry "the force of law," it is "`entitled to respect' ... but only to the extent that [the] interpretation[] ha[s] the `power to persuade.'" Christensen, 120 S.Ct. at 1663 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).⁴

Substantial evidence is "something less than the weight of the evidence." Consolo v. Federal Maritime Com., 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Nonetheless, Commerce must present "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gold Star Co. v. United States, 12 CIT 707, 709, 692 F.Supp. 1382, 1383-84 (1988)(internal quotation omitted), aff'd sub nom. Samsung Elec. Co. v. United States, 873 F.2d 1427 (Fed.Cir. 1989). The possibility of drawing two inconsistent conclusions from the same evidence does not mean that the agency's finding is unsupported by substantial evidence. See Consolo, 383 U.S. at 620, 86 S.Ct. 1018. In other words, Commerce's determination will not be overturned merely because the plaintiff "is able to produce evidence ... in support of its own contentions and in opposition to the evidence supporting the agency's determination." Torrington Co. v. United States, 14 CIT 507, 514, 745 F.Supp. 718, 723 (1990)(internal quotation omitted), aff'd 938 F.2d 1276 (Fed.Cir.1991). Commerce's conclusions must, however, be "reached by `reasoned decisionmaking,' including an examination of the relevant data and a reasoned explanation supported by a stated connection between the facts found and the choice made." Electricity Consumers Resource Council v. Federal Energy Regulatory Com., 747 F.2d 1511, 1513 (D.C.Cir.1984)(citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).

Discussion

Commerce's statutory authority to terminate or suspend an antidumping investigation is found in Section 734 of the Tariff Act of 1930 ("1930 Act").⁵ See 19 U.S.C. § 1673c. Section 734(1), which governs the Agreement with MOT, gives Commerce the authority to suspend an investigation with a nonmarket economy, pursuant to an agreement restricting the volume of imports into the United States. See 19 U.S.C. § 1673c(l)(1). Suspension agreements under subsection (l) must meet the criteria of subsection (d). See 19 U.S.C. § 1673c(l)(1)(A). Subsection (d) allows Commerce to enter into an agreement only if it is in the public interest and is capable of being effectively monitored. See 19 U.S.C. § 1673c(d). A suspension agreement with a nonmarket economy must also prevent price suppression or undercutting. See 19 U.S.C. § 1673c(l)(1)(B).

I. Commerce's "Public Interest" Determination

Under the first prong of the statute, Commerce may enter into a suspension agreement only if it is in the public interest. See 19 U.S.C. § 1673c(l)(1)(A). In evaluating Commerce's determination that the Agreement is in the public interest, the...