Nippon Steel Corp. v. United States

Slip Op. 06-69

UNITED STATES COURT OF INTERNATIONAL TRADE

:
NIPPON STEEL CORP., KAWASAKI :
STEEL CORP., JFE STEEL CORP., :
THYSSENKRUP ACCIAI SPECIALI TERNI :
S.p.A, and ACCIAI SPECIALI TERNI :
(USA), INC., :
:
Plaintiffs, :
: Before: Richard K. Eaton,
v. : Judge
:
: Consol. Court. No. 01-00103
: Public Version
UNITED STATES, :
:
Defendant, :
:
and :
:
ALLEGHENY LUDLUM CORP., AK STEEL :
CORP., BUTLER ARMCO INDEPENDENT :
UNION, ZANESVILLE ARMCO :
INDEPENDENT UNION, and UNITED :
STEEL WORKERS OF AMERICA, :
AFL-CIO/CLC, :
:
Deft.-Intervenors. :
:

OPINION

[International Trade Commission’s final determination pursuant to
third remand affirmed]

Dated: May 9, 2006

Gibson, Dunn & Crutcher, LLP (Gregory Christopher Gerdes and
Joseph H. Price), for plaintiffs Nippon Steel Corporation and JFE
Steel Corporation.

Hunton & Williams, LLP (Robert H. Huey), for plaintiffs
Kawasaki Steel Corporation and JFE Steel Corporation.
Consol. Court No. 01-00103 Page 2
Hogan & Hartzon, LLP (Lewis E. Leibowitz), for plaintiffs
ThyssenKrupp Acciai Speciali Terni S.p.A. and Acciai Speciali
Terni (USA), Inc.

James M. Lyons, General Counsel, U.S. International Trade
Commission (Gracemary R. Roth-Roffy and Mark B. Rees), for
defendant.

Collier, Shannon, Scott, PLLC (Kathleen W. Cannon), for
defendant-intervenors.

Eaton, Judge: This consolidated action1 is before the court

following remand to the United States International Trade

Commission (“ITC” or the “Commission”) of its affirmative injury

determination contained in Grain-Oriented Silicon Electrical

Steel From Italy and Japan, Invs. Nos. 701-TA-355 and 731-TA-659-

660 (Review) (Second Remand), USITC Pub. 3680 (Mar. 2004)

(“Second Remand Determination”). See Nippon Steel Corp. v.

United States, 29 CIT __, 391 F. Supp. 2d 1258 (2005) (“Nippon

V”). Pursuant to remand, the ITC issued its third remand

determination in Grain-Oriented Silicon Electrical Steel From

Italy and Japan, Invs. Nos. 701-TA-355 and 731-TA-659-660

(Review) (Third Remand) USITC Pub. 3798 (September 13, 2005)

(“Third Remand Determination”), finding that revocation of the

subject antidumping and countervailing duty orders would not

likely lead to a continued or recurring material injury to the

domestic industry within the foreseeable future. Defendant-

1
This action includes court numbers 01-00104, and 01-
00105. See Order of 6/19/01.
Consol. Court No. 01-00103 Page 3
intervenors, each participants in the domestic grain-oriented

silicon electrical steel (“GOES”) industry, challenge this

negative determination. Jurisdiction lies under 28 U.S.C. §

1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I). For the

reasons set forth below, the court affirms the ITC’s Third Remand

Determination.

BACKGROUND

The facts of this case have been adequately set forth in the

court’s previous five opinions. See Nippon V, 29 CIT at __, 391

F. Supp. 2d at 1258; Nippon Steel Corp. v. United States, 27 CIT

__, 301 F. Supp. 2d 1355 (2003); Nippon Steel Corp. v. United

States, 26 CIT 1416 (2002) (not reported in the Federal

Supplement); Nippon Steel Corp. v. United States, 26 CIT 1025,

239 F. Supp. 2d 1367 (2002); Nippon Steel Corp. v. United States,

25 CIT 1408 (2001) (not reported in the Federal Supplement). In

Nippon V, the court remanded to the ITC its findings regarding

the likely volume and impact of Japanese and Italian imports of

GOES on the United States market in the event that the existing

orders covering GOES were revoked. Id. at __, __, 391 F. Supp.

2d at 1280, 1284; see also 19 U.S.C. § 1675a(a)(2), (4) (2000).

Pursuant to the court’s instructions, the ITC re-opened the

record and distributed supplemental questionnaires concerning the

likely volume and impact issues. On August 29, 2005, after the
Consol. Court No. 01-00103 Page 4
ITC received all responses to those questionnaires, a vote was

taken by five of the six sitting commissioners. By a vote of

three to two, the Commission found that revoking the orders would

likely not lead to a continued or recurring material injury to

the domestic industry. See Third Remand Determination at 1.

This determination was based largely on the Commission’s finding

that revocation of the orders would not lead to a significant

increase in the likely volume of subject imports entering the

United States. See id. at 6. This new volume finding was based,

in turn, on the new evidence elicited by the supplemental

questionnaires. After factoring this new volume finding into its

analysis, the Commission determined that the likely adverse price

effects of the subject imports would fail to attain a significant

enough level to preclude revocation of the orders. See id. at 9.

The new volume finding also led the Commission to conclude that

any volume and price effects of the subject imports would likely

not have a significant adverse impact on the domestic industry

within a reasonably foreseeable time. See id. at 10. Defendant-

intervenors now contest these most recent findings by asserting

that: (1) the Third Remand Determination was invalid because it

was not reached by the complete Commission membership; (2)

revocation of the GOES orders would likely result in a

significant increase in the volume of subject imports; (3)

revocation of the GOES orders would likely have significant
Consol. Court No. 01-00103 Page 5
adverse price effects on the domestic like product; and (4)

revocation of the GOES orders would likely have a significant

adverse impact on the domestic GOES industry. See generally

Def.-Ints.’ Comments on ITC Third Remand Determination (“Def.-

Ints.’ Comments”).

STANDARD OF REVIEW

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). “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 (1938)).

It “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) (quoting Atl.

Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir.

1984); Matsushita Elec. Indus. Co. v. United States, 750 F.2d

927, 933 (Fed. Cir. 1984)). The existence of substantial

evidence is determined “by considering the record as a whole,

including evidence that supports as well as evidence that ‘fairly

detracts from the substantiality of the evidence.’” Huaiyin
Consol. Court No. 01-00103 Page 6
(30), 322 F.3d at 1374 (quoting Atl. Sugar, Ltd., 744 F.2d at

1562). The possibility of drawing two equally justifiable, yet

inconsistent conclusions from the record does not prevent the

agency’s determination from being supported by substantial

evidence. See Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620

(1966); see also Altx, Inc., 370 F.3d at 1116.

DISCUSSION

I. Participation by the Complete Commission

Defendant-intervenors initially insist that the Third Remand

Determination must again be remanded because the determination,

having been reached by only five of the six sitting

commissioners, was not the product of valid Commission action.

See Def.-Ints.’ Comments at 1–8.

At the time this matter was remanded to the Commission for

the third time, that body was undergoing a change in membership.

See Third Remand Determination at 1 n.3, 4; see also Def.-Ints.’

Comments at 6. On September 6, 2005, Commissioner Marcia E.

Miller left the ITC and, on the same date, she was replaced by

Commissioner Shara L. Aranoff. See Def.-Ints.’ Comments at 6.

Commissioner Miller, however, was still a sitting commissioner at

the time the vote on the Third Remand Determination was taken.

See Def.-Ints.’ Comments at Ex. 2; see also Third Remand
Consol. Court No. 01-00103 Page 7
Determination at 1 n.3. Despite being present, though,

Commissioner Miller did not participate in the vote.2

Defendant-intervenors assert that “remands are to the

Commission as an institution and not to individual

commissioners.” Def.-Ints.’ Comments at 2; see also Asociacion

Colombiana de Exportadores de Flores v. United States, 12 CIT

1174, 1176 n.2, 704 F. Supp. 1068, 1070 n.2 (1988) (“[R]emands

are made to the ITC, not to the individual commissioners.”).

They understand this principle to mean that a decision reached by

a vote of less than the complete Commission membership, where

complete Commission participation is possible, renders the

resulting determination invalid. Specifically, defendant-

intervenors argue that:

[D]uring the entire period encompassed by the Court’s
remand – June 15, 2005, when this Court issued its
decision [Nippon V], through September 13, 2005, when
the Commission issued its [Third Remand Determination]
– there was a full composition to the International
Trade Commission consisting of all six members. Even
though the composition of the Commission changed during
this period, at no time were less than six
Commissioners officially members of the Commission. . .
. [Thus,] [t]he remand decision here, reflecting the
views of only five of the six Commissioners, is not the
“institutional” response of all members of the
Commission contemplated by the Courts. . . .

2
The Action Jacket to the Commission’s Third Remand
Determination, which provides the voting record, simply
indicates, without further explanation, that Commissioner Miller
did not participate in the vote on the Third Remand
Determination. See Def.-Ints.’ Comments at Ex. 2.
Consol. Court No. 01-00103 Page 8
Def.-Ints.’ Comments at 6, 7. Defendant-intervenors bolster

their argument by claiming that Commissioner Miller’s abstention

may have affected the vote’s outcome. They cite Commissioner

Miller’s past affirmative votes as evidence that her

participation could have produced a 3–3 tie in the voting, which

consequently would have required the ITC to make an affirmative

determination.3 See 19 U.S.C. § 1677(11); see also Def.-Ints.’

Comments at 7 (“[I]n this case[,] . . . the failure of one

commissioner to participate in the Commission’s decision had a

potentially determinative effect on the result.”).

3
Under 19 U.S.C. § 1677(11):

If the Commissioners voting on a
determination by the Commission . . . are
evenly divided as to whether the
determination should be affirmative or
negative, the Commission shall be deemed to
have made an affirmative determination. For
the purpose of applying this paragraph when
the issue before the Commission is to
determine whether there is——

(A) material injury to an industry
in the United States, [or]

(B) threat of material injury to
such an industry . . .

by reason of imports of the merchandise, an
affirmative vote on any of the issues shall
be treated as a vote that the determination
should be affirmative.

19 U.S.C. § 1677(11).
Consol. Court No. 01-00103 Page 9
While acknowledging that “remands are generally directed at

the Commission as a whole and therefore require an institutional

response from the Commission,” the ITC argues that voting

participation by all sitting commissioners is not mandated in

every investigation. Def. USITC’s Resp. to Pls.’ Objections to

the USITC’s Third Remand Determination (“Def.’s Resp.”) at 3. In

support of this position, the ITC cites the Court of Customs and

Patent Appeals’4 (“C.C.P.A.”) decision in Voss International

Corp. v. United States, 628 F.2d 1328 (C.C.P.A. 1980), which

interpreted 19 U.S.C. § 1330(c)(1) (1976) (current version at 19

U.S.C. § 1330(c)(6) (2000)).5 See Def.’s Resp. at 3. The ITC

claims that:

[19 U.S.C. § 1330(c)(6)] specifically provides that a
majority of the Commissioners in office constitutes a
quorum of the Commission for purposes of Commission
action, thus authorizing a majority of the
Commissioners to take action on behalf of the

4
The Court of Customs and Patent Appeals served as the
appellate forum for cases decided by this Court until September
30, 1982, at which time the United States Court of Appeals for
the Federal Circuit (“Federal Circuit”) assumed appellate
jurisdiction. See South Corp. v. United States, 690 F.2d 1368,
1368 (Fed. Cir. 1982). In that case, the Federal Circuit held
that “the holdings of our predecessor court[], . . . the United
States Court of Customs and Patent Appeals, . . . shall be
binding as precedent in this court.” Id.
5
Section 1330(c)(1) (1976) provided that, “[a] majority
of the commissioners in office shall constitute a quorum, but the
commission may function notwithstanding vacancies. . . .” The
current version, applicable in this case, 19 U.S.C. § 1330(c)(6)
(2000), although contained in a different subsection, employs the
same language. Therefore, the interpretation provided by the
C.C.P.A. in Voss is relevant to the instant analysis.
Consol. Court No. 01-00103 Page 10
Commission. In fact, in Voss International Corp. v.
United States, the Court of Customs and Patent Appeals
. . . explicitly held that . . . an individual
Commissioner may . . . abstain from voting on any
matter before the Commission, as long as a quorum of
the Commission is otherwise participating in the
matter.

Id. (citations omitted).

An examination of § 1330(c)(6) and of the holding in Voss,

confirms the Commission’s view. Section 1330(c)(6) states that

“[a] majority of the commissioners in office shall constitute a

quorum, but the Commission may function notwithstanding

vacancies.” 19 U.S.C. § 1330(c)(6). Therefore, the statute is

clear in its instruction that valid Commission action requires

participation by only a majority of the sitting commissioners.

The statute’s plain language supports the holding in Voss, where

the C.C.P.A. validated an ITC determination made by four of the

six sitting commissioners. In Voss, one of the six commissioners

was absent when the ITC’s action was taken, and the other, while

present, abstained from voting. See Voss, 628 F.2d at 1333.

Nevertheless, the Court held that:

A quorum of the members of the Commission can conduct
the business of the Commission. In the absence of
statutory restriction, a majority of a quorum is
sufficient to make a valid determination for the
Commission. Congress has expressly provided in [19
U.S.C. § 1330(c)(6)] that a majority of the
Commissioners in office shall constitute a quorum. . .
. By this language, we do not consider that Congress
intended to compel a Commissioner present at a meeting
to vote on every issue presented for determination.
Consol. Court No. 01-00103 Page 11
Abstention from voting is a legally permissible right
often exercised by members of legislative and
administrative bodies.

Id. at 1332 (citations omitted). In addition, the Voss Court

found that § 1330(c)(6)’s predecessor provision did not require a

reviewing court to engage in an investigation aimed at uncovering

a commissioner’s reasons for not voting. Id. (“[W]e do not

consider that the courts are compelled by this language to probe

the mental processes of a hearing officer or to inquire into the

manner and method of administrative consideration of evidence to

discern the reasons for the abstaining vote, i.e., whether it was

for good cause.”) (citations and internal quotation marks

omitted).

Here, both the statute and the holding in Voss make clear

that the Third Remand Determination was lawfully reached by a

majority of a quorum of the sitting commissioners. In addition,

the abstention from voting exercised by departing Commissioner

Miller was within her prerogative. Thus, based on § 1330(c)(6)

and the C.C.P.A.’s holding in Voss, the court finds that the

Third Remand Determination was the product of valid Commission

action.

II. Likely Volume

Having found that the ITC’s action with respect to the Third
Consol. Court No. 01-00103 Page 12
Remand Determination was validly taken, the court now turns to

the substance of the ITC’s findings. Under 19 U.S.C. §

1675a(a)(1), a determination by the Commission as to whether the

revocation of an antidumping or countervailing duty order “would

be likely to lead to continuation or recurrence of material

injury [to the domestic industry] within a reasonably foreseeable

time,” requires an examination of (1) the likely volume of

subject imports and their price effects should the orders be

revoked, and (2) the impact of the subject imports on the

domestic industry upon such revocation. See 19 U.S.C. §

1675a(a)(2)-(4). Section 1675a(a)(2), which sets forth the

criteria for determining the likely volume of subject imports in

the absence of an order, requires that:

In evaluating the likely volume of imports of the
subject merchandise if the order is revoked . . . the
Commission shall consider whether the likely volume of
imports of the subject merchandise would be significant
if the order is revoked . . . either in absolute terms
or relative to production or consumption in the United
States. In so doing, the Commission shall consider all
relevant economic factors, including——

(A) any likely increase in production
capacity or existing unused production
capacity in the exporting country,

(B) existing inventories of the subject
merchandise, or likely increases in
inventories,

(C) the existence of barriers to the
importation of such merchandise into
countries other than the United States, and

(D) the potential for product-shifting if
Consol. Court No. 01-00103 Page 13
production facilities in the foreign country,
which can be used to produce the subject
merchandise, are currently being used to
produce other products.

19 U.S.C. § 1675a(a)(2).

Following this court’s instruction in Nippon V, the ITC re-

opened the record on third remand to obtain further evidence

regarding the likely volume of GOES imports into the United

States should the subject orders be revoked. See Third Remand

Determination at 4. The ITC analyzed this new information,

stating that:

As we previously found, and the domestic producers do
not dispute, the demand for GOES is dependent upon the
demand for electricity. While the record does not
contain forecasts specific to increases in world-wide
GOES demand, the record indicates that world-wide
demand for electricity is expected to increase within
the foreseeable future. . . .6

Moreover, this evidence indicates that electrical
demand [world-wide] is expected to increase at a
greater rate than the expected increase in electrical
demand in the United States. Thus, as we previously
found, it is not likely that the subject producers
would risk their access to other markets in order to
sell significantly more GOES to the United States.

[In addition,] overall demand in the United States for
GOES has been strong, and is likely to continue to
increase, in light of the demonstrated energy needs of

6
Specifically, “the domestic producers submitted
evidence that [[

]]
which are primary markets for subject producers.” Third Remand
Determination at 6.
Consol. Court No. 01-00103 Page 14
the United States and the aging of the nation’s
transformers. Overall, GOES demand has been increasing
in recent years, . . . [and] [t]his upward trend will
likely continue in the foreseeable future due to the
aging infrastructure of the United States’ electrical
power generation and transmission systems and the
likely increase in housing starts which will increase
the need for power and distribution transformers,
respectively. . . . Apart from this likely increase in
demand, the domestic industry is operating at virtually
full capacity and has no specific plans to add capacity
in the foreseeable future.

Third Remand Determination at 6–7, 8–9 n.26. In other words, the

new information, when combined with previous data, indicates that

the predicted increase in world-wide demand for electricity will

deter the foreign producers from sacrificing their sales to other

markets to increase their GOES exports to the United States.

Moreover, increasing demand for electricity in the United States

will keep the domestic GOES industry running at near full

capacity and cancel out any adverse effects of the subject

imports on the U.S. market. Therefore, the ITC found that “the

cumulated volume of subject imports would not increase

substantially if the orders [were] revoked.” Id. at 5–6.

In addition to these findings based on the newly

supplemented record, the ITC adopted the prior dissenting views

of Vice Chairman Okun and Commissioner Hillman in Grain-Oriented

Silicon Electrical Steel From Italy and Japan, Invs. Nos. 701-TA-

355 and 731-TA-659-660 (Review) (March 2, 2001) (“Dissenting

Views”). The Dissenting Views analyzed the likely volume of
Consol. Court No. 01-00103 Page 15
subject imports pursuant to the statutory factors set forth in 19

U.S.C. § 1675a(2) (A)-(D).

First, neither the Italian nor Japanese producers have
significant excess capacity that could be used to
increase shipments to the U.S. market. . . . [Acciai
Speciali Terni] reported that, as of December 2000, it
was not accepting any new orders for delivery through
May 1 2001. . . . With the exception of one year
(1998), the Japanese industry operated at very high
capacity utilization during the period reviewed. . . .7

[Second,] the record contains no indication that there
are any barriers to the importation of the subject
merchandise into countries other than the United
States.

[Finally,] we do not find that there is any significant
potential for product-shifting by the subject producers
in favor of increased production of GOES. [Defendant-
intervenors] argued that the subject producers could
produce more GOES by switching some of their productive
capacity from production of non-oriented electrical
steel (NOES) to production of GOES. Although the two
types of products, as well as other steel products,
share a number of common production steps, there is a
substantial production bottleneck presented by box
annealing, which is specific to GOES production.
Therefore, we do not find a likelihood of significant
product shifting in favor of GOES production within a
reasonably foreseeable time.

Dissenting Views at 22–23 (footnotes omitted).8

7
With respect to the amount and location of GOES
inventories, the Dissenting Views noted that “the subject
producers do not maintain significant inventories of GOES that
could be used to increase market share in the United States.
[Acciai Speciali Terni] reported no inventories of GOES in Italy.
Inventories of GOES in Japan have been declining, and by
September 2000 had fallen to [[ ]] short tons. There were
[[ ]] inventories of GOES from Italy or Japan reported by any
U.S. importer.” Dissenting Views at 23.
8
The Dissenting Views also noted that the domestic
(continued...)
Consol. Court No. 01-00103 Page 16
Defendant-intervenors challenge the ITC’s likely volume

determination as being unsupported by substantial record

evidence. See Def.-Ints.’ Comments at 9–10. Their chief

contention is that the ITC’s analysis failed to address

adequately the significance of the likely volume of imports in

terms “relative to production or consumption in the United

States.” 19 U.S.C. § 1675a(a)(2); see also Def.-Ints.’ Comments

at 11. According to defendant-intervenors, “the only discussion

of any quantifiable figures on likely volumes from Japan and

Italy during the period of review and future periods refers to

capacity and capacity utilization levels, and export percentages,

but these analyses [were] done in a vacuum and not vis-à-vis U.S.

consumption or production.” Def.-Ints.’ Comments at 11. For

defendant-intervenors, had the Commission engaged in a more

detailed analysis of the effect of subject imports on the

domestic industry in terms relative to U.S. levels of production

or consumption, it would have found that “shifts in even a minor

amount of third country exports to the United States or sales of

even small amounts of excess capacity to the United States . . .

could be significant.” Id.

In addition, defendant-intervenors’ point to what they claim

8
(...continued)
industry’s “capacity utilization was [[ ]] percent in
interim 2000. . . .” Dissenting Views at 22.
Consol. Court No. 01-00103 Page 17
is the ITC’s “fail[ure] to address key evidentiary findings that

fairly detract[ed] from its conclusion.” Id. at 10 (footnote

omitted). Specifically, defendant-intervenors insist that the

ITC “fail[ed] to consider express statements by importers and

purchasers that GOES exports from Japan and Italy to the United

States would increase if the orders were revoked.” Def.-Ints.’

Comments at 12.9 This argument is two-fold. First, defendant-

intervenors insist that the ITC was required to consider the

statements from domestic producers and importers concerning the

effect of revocation on the amount of Italian and Japanese GOES

exports previously destined for Canada and Mexico that could, in

9
Defendant-intervenors specifically contend that:

What the Commission failed to consider or
address, however, was important record
evidence from U.S. purchasers and importers
specifically indicating that a shift back to
the U.S. from sales to both Canada and Mexico
would occur. For example, importer [[

]].
Similarly, a number of purchasers and
importers reported that if the orders were
revoked and the duties lifted, they would
pursue sourcing GOES from Japan and/or Italy
and shift their sourcing requirements to
these countries. . . . (citing Purchasers’
Questionnaire Responses of [[

]]).

Def.-Ints.’ Comments at 12–13.
Consol. Court No. 01-00103 Page 18
the absence of the orders, be shipped to the United Sates. Id.

For defendant-intervenors, those statements demonstrate that

revocation of the orders would lead to these exports being

diverted to the United States, resulting in a significant

increase in the volume of subject imports into the U.S. market.

The second part of this claim is properly viewed as one seeking

application of the doctrine of “law-of-the-case.”10 Defendant-

intervenors insist that this court’s holding in Nippon V, which

affirmed the ITC’s conclusion that the subject producers were not

precluded from shifting the destination of their subject imports

from Canada and Mexico to the United States, estopped the ITC

from reaching a different conclusion in the Third Remand

Determination. Id. at 13; Nippon V, 29 CIT at __, 391 F. Supp.

2d at 1276 n.17.11 Put another way, defendant-intervenors claim

that, because the court previously found that substantial

evidence supported the conclusion that the subject exporters

10
The law-of-the-case doctrine “generally bars retrial of
issues that were previously resolved.” Intergraph Corp. v. Intel
Corp., 253 F.3d 695, 697 (Fed. Cir. 2001) (citing Messenger v.
Anderson, 225 U.S. 436, 444 (1912)). The doctrine “operates to
protect the settled expectations of the parties and promote
orderly development of the case[,] . . . ensures judicial
efficiency and prevents endless litigation.” Suel v. Sec. of
Health and Human Servs., 192 F.3d 981, 984–85 (Fed. Cir. 1999).
11
There, this court stated that, “[b]ased on the evidence
in the record, the court finds that the ITC has demonstrated with
substantial evidence that these [[ ]] would not
hinder the export of GOES to the U.S. in the foreseeable future.”
Nippon V, 29 CIT at __, 391 F. Supp. 2d at 1276 n.17.
Consol. Court No. 01-00103 Page 19
would not be prohibited from shifting the destination of their

GOES from Canada or Mexico to the United States should the orders

be revoked, the ITC is at least required to explain why it now

finds that “it is not likely that subject producers would risk

their access to other markets in order to sell significantly more

GOES into the United States.” Third Remand Determination at 7.

Asserting that the ITC provided no such explanation, defendant-

intervenors maintain that the Commission’s likely volume

determination was unsupported by substantial evidence and

otherwise contrary to law.

Despite defendant-intervenors’ claims, it is apparent that

the ITC is justified in its conclusion. First, a review of the

ITC’s analysis demonstrates that the likely volume of subject

imports was addressed in terms relative to U.S. production and

consumption. Specifically, the evidence relied upon in the

Dissenting Views, and that adduced in the Third Remand

Determination, indicates that the expected strong U.S. demand for

GOES will permit American GOES manufacturers to maintain their

current levels of production, and thereby enable the domestic

industry to offset any negative effects resulting from increased

volumes of subject imports.12 See Dissenting Views at 24 (“[W]e

12
As this court has previously held, “[i]n examining
whether the ITC has satisfied the statutory injunction to
(continued...)
Consol. Court No. 01-00103 Page 20
expect robust U.S. demand for GOES in the foreseeable future.

Thus, the U.S. market could absorb additional GOES imports

without displacing existing domestic suppliers.”); see also Third

Remand Determination at 8 n.26 (finding that GOES demand in the

U.S. is expected to increase in the foreseeable future, and that

“the domestic industry is [currently] operating at virtually full

capacity . . . .”). The Commission made similar findings with

respect to consumption. Specifically, the Dissenting Views found

that, because “U.S. consumption of high permeability GOES fell

substantially between the original investigation and current

review period[,] . . . there is less demand [in the U.S.] for the

main product type . . . that Japan (which has . . . the larger

industry of the two subject countries) exported to the United

States . . . .” See Dissenting Views at 24.13 That is, the

12
(...continued)
consider whether the likely volume of imports of the subject
merchandise would be significant if the order is revoked . . .
either in absolute terms or relative to production or consumption
in the United States, it is not necessary to find that at each
point the ITC clearly labeled its findings by appending statutory
language as a marker.” Nippon Steel Corp. v. United States, 26
CIT 1416, 1423 (2002) (not reported in the Federal Supplement)
(internal quotation marks omitted).
13
The Dissenting Views further noted that:

In the original investigations, [[ ]]
percent of U.S. shipments of Japanese imports
(which accounted for [[ ]] percent of
U.S. consumption) and [[ ]] percent of
U.S. producers’ domestic shipments were high-
permeability GOES. By contrast, over the
(continued...)
Consol. Court No. 01-00103 Page 21
Commission determined that downward trends in U.S. consumption of

high permeability GOES, the type of GOES primarily exported by

Japan and in smaller amounts by Italy, would serve to discourage

the subject countries from shifting their subject imports to the

United States. See Dissenting Views at 23 n.17, 24. Thus, the

court finds that the Commission addressed the likely volume of

subject imports in the event the orders are revoked in terms

relative to both U.S. production and consumption.

Second, it is evident to the court that the ITC considered

all of the record evidence, including the evidence that fairly

detracted from its ultimate conclusion, i.e., the statements by

GOES importers and producers dealing with the potential shift in

imports from Canada and Mexico to the United States. Indeed, the

Commission’s analysis acknowledged that “revocation might result

in a small shift in subject imports from Canada and Mexico to the

United States . . .,” but determined that, should any shift

occur, it was “unlikely to be significant because the subject

producers . . . servic[e] several large multinational producers

with production facilities in Canada and Mexico and [are]

13
(...continued)
current review period, [[ ]] percent of
U.S. producers’ domestic shipments and very
small quantities of Japanese and non-subject
imports were high-permeability GOES.

Dissenting Views at 24 n.20.
Consol. Court No. 01-00103 Page 22
therefore unlikely to jeopardize important transnational accounts

simply to arbitrage price differentials between national

markets.” Def.’s Resp. at 8 (citations and internal quotation

marks omitted); see also Third Remand Determination at 8–9 n.26.

Finally, the court holds that defendant-intervenors’ law-of-

the-case argument regarding the preclusive effect of this Court’s

prior rulings in subsequent remands is misplaced. As both this

Court and the United States Court of Appeals for the Federal

Circuit have held, because the standard applied by this court is

“substantial evidence,”

[the] “law of the case” argument is inapposite to the
present situation. . . . [In the prior remand], we did
not hold that certain of the conclusions in the first
determination were correct as a matter of law. Rather,
we held that certain conclusions were supported by
substantial evidence and were otherwise in accord with
law. Such a holding “is not necessarily inconsistent
with a holding that the opposite conclusion[s] [were]
also supported by substantial evidence and otherwise in
accord with law.”

Taiwan Semiconductor Indus. Ass’n v. United States, 24 CIT 914,

919, 118 F. Supp. 2d. 1250, 1254 (2000), aff’d, 266 F.3d 1339

(Fed. Cir. 2001) (quoting Trent Tube Div., Crucible Materials

Corp. v. Avesta Sandvik Tube, 975 F.2d 807, 814 (Fed. Cir.

1992)). Thus, these cases stand for the proposition that a

finding by this Court that a portion of the ITC’s determinations

on a previous remand was supported by substantial evidence, does

not prevent the Commission from lawfully reaching a different
Consol. Court No. 01-00103 Page 23
conclusion on the same issue in a subsequent remand proceeding.

See id., 118 F. Supp. 2d at 1254; see also Def.’s Resp. at 9.

That proposition is consistent with the well-settled principle

that “the possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s

finding from being supported by substantial evidence.” Consolo,

383 U.S. at 620. (citations omitted). Moreover, the court notes

that its finding in Nippon V, that nothing precluded the shift of

GOES exports to the United States, was not a holding that such a

shift would occur. See Nippon V, 29 CIT at __, 391 F. Supp. 2d

at 1276 n.17. Put another way, because the court never held that

revocation of the orders would lead foreign producers to forgo

the sales of their merchandise to other markets in order to

increase their exports to the United States, the ITC’s finding on

third remand was not in conflict with any previous court holding.

Therefore, the court finds that the law-of-the-case doctrine did

not prevent the Commission from reaching its decision in the

Third Remand Determination.

Thus, the court affirms, as being supported by substantial

evidence and otherwise in accordance with law, the ITC’s finding

that the likely volume of subject imports resulting from the

revocation of the orders would not be significant.
Consol. Court No. 01-00103 Page 24
III. Likely Price Effects

The next step in determining whether the revocation of an

antidumping or countervailing duty order would likely lead to

continued or recurring material injury to the domestic industry

requires an evaluation of the likely effects of that revocation

on the price of the domestic like product. See 19 U.S.C. §

1675a(a)(3).14 The ITC now finds no likelihood of significant

adverse price effects should the orders be revoked despite this

court’s affirmation of its Second Remand Determination finding

that revocation would likely result in significant adverse price

effects. See Nippon V, 29 CIT at __, 391 F. Supp. 2d at 1281.

The ITC’s new conclusion, that “revocation of the orders . . .

would not be likely to lead to significant underselling . . . or

14
This statute provides, in relevant part:

In evaluating the likely price effects of
imports of the subject merchandise if the
order is revoked . . . the Commission shall
consider whether——

(A) there is likely to be
significant price underselling by
imports of the subject merchandise
as compared to domestic like
products, and

(B) imports of the subject
merchandise are likely to enter the
United States at prices that
otherwise would have a significant
depressing or suppressing effect on
the domestic like products.

19 U.S.C. § 1675a(a)(3).
Consol. Court No. 01-00103 Page 25
to significant price depression . . . within a reasonably

foreseeable time,” stems, in large measure, from its new finding

that the volume of subject imports entering the United States in

the absence of the orders would not be significant. Third Remand

Determination at 9. In keeping with this new volume finding, the

ITC adopted the analysis set forth in the Dissenting Views.

We have considered the likely degree of underselling by
GOES from Italy and Japan and whether imports of such
merchandise are likely to enter the United States at
prices that would have a significant depressing or
suppressing effect on the price of the domestic like
product. Given our expectation of a modest increase in
the volume of subject imports . . . we would expect
subject imports to have an effect on U.S. prices for
GOES. However, in the absence of significant volumes
we would not anticipate significant price effects.
Moreover, an expanding U.S. market for GOES would, in
our view, permit the introduction of some additional
import supply without having a detrimental impact on
the U.S. pricing environment.

Dissenting Views at 25–26.

Defendant-intervenors challenge the ITC’s conclusion that

revocation of the GOES orders would not result in significant

adverse price effects by claiming that the Commission improperly

relied on its erroneous finding that “the likely volume of

imports would not be significant.” Def.-Ints.’ Comments at 14.

As a part of this argument, defendant-intervenors claim that the

Commission failed to consider all of the relevant record

evidence, particularly that which had been determinative in the

Second Remand Determination. In addition, defendant-intervenors
Consol. Court No. 01-00103 Page 26
again assert their “law-of-the-case” argument and claim that this

court’s holding in Nippon V is binding on the Commission and

prevents the agency from reaching a different result in the Third

Remand Determination. See id. at 15; see also Nippon V, 29 CIT

at __, 391 F. Supp. 2d at 1281. Thus, defendant-intervenors ask

that the court remand this issue in order to allow the ITC to

reconsider its likely price effects finding and to conduct a more

complete price analysis.

With respect to the argument that the Commission based its

likely price effects finding on an improper likely volume

finding, because the court has previously found the ITC’s volume

analysis to be supported by substantial evidence, it necessarily

follows that this claim is without merit.

The court further finds defendant-intervenors’ related

assertion, i.e., that the Commission failed to take into account

the evidence that led to its prior affirmative determinations,

unconvincing. Upon a review of the ITC’s likely price effects

analysis as articulated in the Dissenting Views and supported by

the new evidence marshaled in the Third Remand Determination, it

is apparent that the Commission found that the new volume finding

tipped the scales to a negative injury finding. That is, the

Commission did not fail to consider the past evidence, but rather
Consol. Court No. 01-00103 Page 27
undertook a de novo review of that evidence in light of the new

evidence presented in the Third Remand, and came to a different

conclusion. See Def.’s Resp. at 12. Indeed, “the . . .

Commission majority joined the very same discussion of the

evidence . . . that was set forth in the prior Commission’s

original views . . .,” for instance, evidence relating to the

substitutability of the Italian and Japanese product with

domestic GOES,15 however, “the Commission simply concluded that

these . . . factors were offset by . . . record evidence showing

that the volume of the subject imports was likely to be small

upon revocation . . . .” Id. The Commission’s de novo review,

therefore, was predicated upon the Commission’s new likely volume

finding. Thus, given the small amount of imports expected to

enter the United States upon revocation of the orders, the

Commission concluded that any adverse price effects resulting

from those imports would be insubstantial.

As to defendant-intervenors’ claim that the Commission is

estopped by the court’s holding in Nippon V that its previous

likely price effects finding was supported by substantial

15
The Dissenting Views specifically found that “limited
price effects from GOES from Italy and Japan [resulted] because
of . . . poor Italian-U.S. and Japanese-U.S. product
substitutability.” Dissenting Views at 25 n.23 (citing Grain-
Oriented Silicon Electrical Steel From Italy and Japan, Invs.
Nos. 701-TA-355 and 731-TA-660 (Final), USITC Pub. No. 2778 (May
1994) at I-27–30).
Consol. Court No. 01-00103 Page 28
evidence, the court reiterates that the Commission is not bound

by a prior ruling of the court that a portion of its prior

findings was supported by substantial evidence where new remand

proceedings reach a different conclusion, if that new conclusion

is itself supported by substantial evidence. See Consolo, 383

U.S. at 620; see also Taiwan Semiconductor, 24 CIT at 919, 118 F.

Supp. 2d at 1254; Trent Tube, 975 F.2d at 814. Therefore,

although different from the prior sustained result, the

Commission’s price effects finding in the Third Remand

Determination may be affirmed if, as here, it is supported by

substantial evidence. See Trent Tube, 975 F.2d at 814.

Because the Commission’s likely volume analysis has been

found to be supported by substantial evidence, and because the

Commission considered all of the record evidence in light of that

finding, the court holds that the ITC’s finding that significant

adverse price effects would likely not result from revocation of

the GOES orders is supported by substantial evidence and

otherwise in accordance with law.

IV. Likely Impact

Finally, the court must analyze the Commission’s

determination on likely impact of subject imports “on the state

of the industry in the United States . . . .” 19 U.S.C. §
Consol. Court No. 01-00103 Page 29
1675a(a)(4).16 Here, the ITC once again articulates its finding

in the words of the Dissenting Views. See Third Remand

Determination at 9. Specifically, the ITC found that, since the

imposition of the orders, the domestic industry experienced

significant gains in both manufacturing capacity and GOES

16
The statute provides that:

In evaluating the likely impact of imports of
the subject merchandise on the industry if
the order is revoked . . . the Commission
shall consider all relevant economic factors
which are likely to have a bearing on the
state of the industry in the United States,
including, but not limited to——

(A) likely declines in output,
sales, market share, profits,
productivity, return on
investments, and utilization of
capacity,

(B) likely negative effects on cash
flow, inventories, employment,
wages, growth, ability to raise
capital, and investment, and

(C) likely negative effects on the
existing development and production
efforts of the industry, including
efforts to develop a derivative or
more advanced version of the
domestic like product.

The Commission shall evaluate all relevant
economic factors described in this paragraph
within the context of the business cycle and
the conditions of competition that are
distinctive to the affected industry.

19 U.S.C. § 1675a(4).
Consol. Court No. 01-00103 Page 30
production, while GOES inventories simultaneously decreased.17

In addition, the ITC found that “the small volumes of subject

imports that were likely to enter the market upon revocation were

unlikely to have a significant impact on the condition of the

industry.” Def.’s Resp. at 13; see also Third Remand

17
Specifically, the Dissenting Views stated that:

[D]omestic producers have increased their
capacity and, more noticeably, their
production since the imposition of the
orders. Capacity utilization is
substantially higher than [[ ]] percent,
and in recent years has been fully [[
]] percentage points higher than in the
early 1990s. Demand is up, and U.S.
producers have gained [[ ]] percentage
points of market share since 1993. Shipment
volumes are up, even though average unit
values are about the same as they were in the
early 1990s. Inventory levels have
evaporated, and worker productivity is up.
As a result, the domestic industry is posting
operating income of more than [[ ]] per
short ton, as opposed to operating losses of
[[ ]] per short ton during 1992 and
1993.

The domestic industry performance since 1997
has continued to advance. Volume-based
indicators (output, sales, and inventory
ratios) have improved, while value-based
sales indicators have declined less rapidly
than have costs and expenses. As a result,
the domestic industry’s operating income
margin increased from [[ ]] percent in
1997 to [[ ]] percent in 1999 and was [[
]] percent in interim 2000, compared to
[[ ]] percent in interim 1999.

Dissenting Views at 26–27 (footnotes omitted).
Consol. Court No. 01-00103 Page 31
Determination at 9–10. Based on these facts, the Commission

found that, “if the subject orders were revoked, subject imports

likely would not have a significant adverse impact on the

domestic industry within a reasonably foreseeable time.

Dissenting Views at 27; see also Third Remand Determination at 10

(stating that any minimal effect of the subject imports on the

domestic industry would “not adversely impact the industry’s

profitability and ability to raise capital and maintain necessary

capital investments.”).

Defendant-intervenors’ primary argument is that “the

Commission failed to address [in its analysis] the capital-

intensive nature of [the GOES] industry and the high costs

associated with GOES production as factors that could mitigate

the profitability the industry had experienced if capacity

utilization levels declined.” Def.-Ints.’ Comments at 16. That

is, defendant-intervenors insist that the increased volume of

Italian and Japanese GOES upon revocation of the orders will

diminish the demand for domestically produced GOES, thereby

requiring U.S. GOES manufacturing plants to reduce production and

assuring a substantial downturn in profitability among U.S.

manufacturers. Id. The defendant-intervenors further claim that

the ITC’s failure to consider this assertion indicates a failure

to consider evidence that fairly detracts from the ITC’s finding.
Consol. Court No. 01-00103 Page 32
Id. For defendant-intervenors, therefore, the posited decrease

in capacity utilization that would result from an increase in

importation of Italian and Japanese GOES, would likely have a

significant enough adverse impact on the domestic industry to

warrant keeping the orders in place.

The court finds defendant-intervenors’ arguments with

respect to the Commission’s likely impact finding unavailing. A

review of the Third Remand Determination demonstrates that the

Commission took into account the effect of the volume of subject

imports on the various economic conditions associated with the

domestic GOES industry, specifically capacity utilization. See

Third Remand Determination at 9 (“After a review of the record,

as supplemented, we adopt our prior findings with respect to

likely impact . . . . The new information obtained in the

present remand . . . is not inconsistent with this finding.”);

see also Dissenting Views at 26–27 (noting that domestic GOES

producers increased both their capacity and amount of production

since the imposition of the orders.). Further, the court notes

that the Commission, pursuant to its new volume finding, directly

stated that “[a]ny minimal effect on the industry’s production,

shipments, sales, market share, and revenues would not adversely

impact the industry’s profitability and ability to raise capital

and maintain necessary capital investments.” Dissenting Views at
Consol. Court No. 01-00103 Page 33
27; see also Third Remand Determination at 10. In other words,

the court agrees that, because of its likely volume and capacity

utilization findings, the ITC has supported with substantial

evidence its conclusion that the modest volume of subject imports

expected to enter the United States would limit any adverse

impact on the domestic industry’s profitability and its ability

to raise capital should the orders be revoked.

Based on the foregoing, the court affirms the ITC’s

determination that revocation of the GOES orders would likely not

have a significant adverse impact on the domestic industry in the

foreseeable future as being supported by substantial evidence and

otherwise in accordance with law.

CONCLUSION

In accordance with the foregoing discussion, the court

affirms the ITC’s determination in Grain-Oriented Silicon

Electrical Steel From Italy and Japan, Invs. Nos. 701-TA-355 and

731-TA-659-660 (Review) (Third Remand) USITC Pub. 3798 (September

13, 2005), and dismisses this case. Judgment shall be entered

accordingly.

/s/Richard K. Eaton
Richard K. Eaton

Dated: May 9, 2006
New York, New York