Siderca S.A.I.C. v. United States

Slip Op. 05-108

United States Court of International Trade

SIDERCA S.A.I.C., ET AL.,

Plaintiffs,

v.

UNITED STATES,
Before: Pogue, Judge
Defendant,
Consol. Court No. 01-00692
and

NEWPORT STEEL CORPORATION;
MAVERICK TUBE CORPORATION; LONE
STAR STEEL COMPANY, INCORPORATED;
KOPPEL STEEL CORPORATION; IPSCO
TUBULARS, INCORPORATED; GRANT
PRIDECO, INC.; UNITED STATES STEEL
CORPRATION,

Defendant-Intervenors.

OPINION

[ITC’s remand determination sustained.]

Dated: August 26, 2005

White & Case, LLP (David P. Houlihan, Gregory J. Spak, Richard
J. Burke, Lyle B. Vander Schaaf, and Joanna M. Ritcey-Donohue) for
the plaintiff.

James M. Lyons, Acting General Counsel, Andrea C. Casson,
Acting Assistant General Counsel for Litigation, U.S. International
Trade Commission, (Peter L. Sultan) for the defendant.

Schagrin Associates (Roger B. Schagrin) for defendant-
intervenors Newport Steel Corporation, Maverick Tube Corporation,
Lone Star Steel Company, Koppel Steel Corporation, IPSCO Tubulars,
Incorporated, and Grant-Prideco, Incorporated.

Skadden, Arps, Slate, Meagher & Flom LLP (Robert E.
Consol. Court No. 01-00692 Page 2

Lighthizer, John J. Mangan, James C. Hecht, and Stephen P. Vaughn)
for defendant-intervenor United States Steel Corporation.

Pogue, Judge: Plaintiffs, Siderca S.A.I.C. (“Siderca”),

Dalmine S.p.A. (“Dalmine”), and NKK Tubes challenge the remand

determination of Defendant, the U.S. International Trade Commission

(“the ITC”), in the sunset review of antidumping orders on oil

country tubular goods (“OCTG”) from Argentina, Italy, Japan, Korea,

and Mexico. Plaintiffs allege that aspects of the ITC’s

determination are not in accordance with law and unsupported by

substantial record evidence.

BACKGROUND

In August of 1995, following the ITC’s finding that U.S.

producers of OCTG were being materially injured by competition from

dumped imports, see Oil Country Tubular Goods from Argentina,

Austria, Italy, Japan, Korea, Mexico, and Spain, USITC Pub. 2911,

Inv. Nos. 701-TA-363 and 364 (Final) and 731-TA-711-717 (Final),

P.R. List 1, Doc. No. 116 at I-3 (Aug. 1995) (“Original Determ.”),

the United States Department of Commerce imposed antidumping orders

on OCTG from Argentina, Italy, Japan, Korea, and Mexico. See Oil

Country Tubular Goods from Argentina, 60 Fed. Reg. 41,055 (Dep’t

Commerce Aug. 11, 1995) (antidumping duty order); Oil Country

Tubular Goods from Italy, 60 Fed. Reg. 41,057 (Dep’t Commerce Aug.
Consol. Court No. 01-00692 Page 3

11, 1995) (antidumping duty order); Oil Country Tubular Goods from

Japan, 60 Fed. Reg. 41,058 (Dep’t Commerce Aug. 11, 1995)

(antidumping duty order); Oil Country Tubular Goods from Korea, 60

Fed. Reg. 41,057 (Dep’t Commerce Aug. 11, 1995) (antidumping duty

order); Oil Country Tubular Goods from Mexico, 60 Fed. Reg. 41,056

(Dep’t Commerce Aug. 11, 1995) (antidumping duty order). Five

years later, pursuant to 19 U.S.C. § 1675(c) (2000), the ITC

instituted a sunset review to determine whether revocation of the

antidumping orders would likely lead to the recurrence of material

injury to U.S. OCTG producers within a reasonably foreseeable

period of time. See 19 U.S.C. § 1675a(a)(1)1; Seamless Pipe from

Argentina, Brazil, Germany, and Italy and Oil Country Tubular Goods

from Argentina, Italy, Japan, Korea, and Mexico, 65 Fed. Reg.

63,889 (ITC Oct. 25, 2000) (notice of Commission determinations to

conduct full five-year reviews concerning the countervailing duty

order and antidumping duty orders on seamless pipe from Argentina,

Brazil, Germany, and Italy and the countervailing duty order and

antidumping duty orders on oil country tubular goods from

1
Title 19 U.S.C. § 1675a(a)(1) states, in part:

(1) In general.
In a [sunset review], the Commission shall determine whether
revocation of an order, or termination of a suspended
investigation, would be likely to lead to continuation or
recurrence of material injury within a reasonably foreseeable
time. The Commission shall consider the likely volume, price
effect, and impact of imports of the subject merchandise on the
industry if the order is revoked or the suspended investigation
is terminated.
Consol. Court No. 01-00692 Page 4

Argentina, Italy, Japan, Korea, and Mexico) (“Review Notice”). The

ITC cumulated the volume and effect of imported OCTG from the five

reviewed countries; the ITC then found that, in the event of

revocation of the antidumping order, these cumulated imports would

likely cause recurrence of material injury to U.S. OCTG producers

within a reasonably foreseeable time. See Oil Country Tubular

Goods from Argentina, Italy, Japan, Korea, and Mexico, Inv. No.

701-TA-364 (Review) and 731-TA-711 and 713-716 (Review), C.R. List

2, Doc. No. 91 at 1, 24 (June 29, 2001) (“Commission’s Views”).

Plaintiffs, subject producers of OCTG,2 challenged the ITC’s

determinations before the Court, arguing that the ITC’s

interpretation of the word “likely” in its governing statute was

not in accordance with law, and that there was not substantial

evidence to support many of ITC’s substantive findings.

The court remanded the ITC’s determination so that the agency

could explain how it understood and applied the statutory term

“likely” in making its determination. The ITC affirmed on remand

its finding that recurrence of material injury to the domestic

industry would be likely in the event of revocation of the

antidumping order. After remand, plaintiffs again challenge the

agency’s interpretation of the word “likely”, as well as the

quantum of evidence supporting the agency’s substantive findings.

2
Siderca is an Argentine producer of OCTG. Dalmine is an
Italian producer. NKK Tubes is a Japanese producer. Commission’s
Views, C.R. List 2, Doc. No. 91 at 3.
Consol. Court No. 01-00692 Page 5

STANDARD OF REVIEW

The Court reviews the ITC’s determinations in sunset reviews

to ascertain whether they are “unsupported by substantial evidence

on the record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i); see also 19 U.S.C. § 1516a(a)(2)(B)(iii).

DISCUSSION

The court first evaluates the challenge to the ITC’s

interpretation of the word “likely”; it then goes on to discuss

whether substantial evidence supports the agency’s substantive

findings.

1. The “Likely” Standard

The word “likely” has a place of high importance in the

statute governing sunset reviews. See 19 U.S.C. § 1675a. Indeed,

that term is the fulcrum upon which most of the decisions that the

agency is required to make in a sunset review turn. For example,

the ITC must determine whether material injury is “likely” to

continue or recur. See 19 U.S.C. § 1675a(a)(1).

Various opinions of the Court have held that the term “likely”
Consol. Court No. 01-00692 Page 6

should be interpreted to mean “probable,” or, put another way,

“more likely than not.” See, e.g., AG der Dillinger Hüttenwerke

v. United States, 26 CIT 1091, 1100-1101, 1101 n.14 (2002)

(explaining that in a countervailing duty sunset review, to satisfy

a “likely” standard, a thing must be shown to be “probable,” or

“more likely than not”); Usinor Industeel, S.A. v United States, 26

CIT 467, 474-75 (2002) (“Usinor I”), Usinor Industeel, S.A. v

United States, 26 CIT 1402, 1403-04 (2002), affirmed at 112 Fed.

Appx. 59 (Fed. Cir. 2004) (rejecting argument that “likely” means

something between “possible” and “probable”). In light of previous

cases dealing with contemporaneous reviews finding that the ITC may

have employed the wrong standard, contemporaneous statements by the

ITC arguing for or advancing a “possible,” rather than a “probable”

standard, and the lack of discussion of the issue in the

determination itself, the court directed the agency on remand to

indicate what standard it had actually used, and if the standard

used was incorrect, to revisit its determinations accordingly. See

Order Remanding Court No. 01-692 to the ITC (April 5, 2005).

In its remand determination, the ITC states “[i]n our original

views in these reviews we applied a ‘likely’ standard that is

consistent with how the Court has defined that term in Siderca,

S.A.I.C. v. United States, 28 CIT __, 350 F. Supp. 2d 1223, 1243

(2004) as well as in prior opinions addressing this issue.”

Response of the Commission to Remand Order at 2, Attach. to Letter
Consol. Court No. 01-00692 Page 7

from Peter L. Sultan, Counsel for Defendant, to the Hon. Donald C.

Pogue, Re: Siderca, S.A.I.C., et. al. v. United States, Consol. Ct.

No. 01-692 (June 6, 2005). The court will accept this statement as

an assertion that the evidence amassed and cited by the agency is

such as to meet or surpass the burden under the “probable”

standard. Therefore, at this juncture, the only way in which the

agency’s statement can be measured is by the sum of record evidence

that supports the agency’s determinations here. See Siderca,

S.A.I.C. v. United States, 29 CIT __, Slip Op. 05-64 at 5-6 (June

9, 2005).

2. Substantial evidence

Plaintiffs challenge whether the evidence compiled by the ITC

is sufficient to support its conclusions on a number of issues.

First, plaintiffs challenge the ITC’s determination to cumulate

imports from Argentina, Italy, Japan, Korea, and Mexico. Second,

plaintiffs challenge the evidence supporting the agency’s

determination that, taken together, (1) the likely volume of

subject imports, (2) the likely price effects of subject imports,

and (3) the likely impact of subject imports, are such as to lead

to a recurrence of material injury to domestic manufacturers of

OCTG within a reasonably foreseeable time. The court addresses the

two issues in turn.

A. Cumulation
Consol. Court No. 01-00692 Page 8

In a sunset review proceeding, the ITC may cumulate subject

imports from all countries with respect to which [sunset reviews]

were initiated on the same day, if certain other elements are

satisfied. See 19 U.S.C. § 1675a(a)(7). First, the ITC must

determine whether the imports from each country would be likely to

have no discernible impact on the U.S. market. See id. Second,

the ITC must find that the imports it seeks to cumulate would

likely compete with each other and with the domestic product. See

id. Here, there is no question that sunset reviews for OCTG from

Argentina, Italy, Japan, Korea, and Mexico were initiated on the

same day. See Review Notice, 65 Fed. Reg. at 63,889. However,

plaintiffs challenge whether certain of these countries’ imports

would have a discernible adverse impact and moreover whether they

would likely compete with each other and with the domestic product.

I. Discernible adverse impact

Regarding discernible adverse impact, plaintiffs argue that

Italy’s imports comprised only a very small percentage of the

imports to the U.S. market in the original investigation. Pls.’

Initial Br.: Mem. Pts. & Auths. Supp. Pls.’ Mot. J. Agency Rec. 36

(“Pls.’ Mot.”). Moreover, plaintiffs argue that Arvedi, one of the

Italian producers investigated in the original proceedings, has

since ceased to manufacture OCTG, that the record shows that the

demand for OCTG in Italy is increasing, such that Dalmine, the

remaining Italian producer (and a plaintiff here) would have little
Consol. Court No. 01-00692 Page 9

motivation to export to the U.S. in the event that the order is

revoked, and that, at any rate, Dalmine is operating nearly at

capacity. Id. (citing Pre-Hearing Brief of Dalmine SpA from Italy,

Attach. to Letter from David P. Houlihan to the Hon. Donna R.

Koehnke, Secretary, ITC, Re: Oil Country Tubular Goods from

Argentina, Italy, Japan, Korea, and Mexico, Inv. Nos. 701-TA-364

and 731-TA-711, 731-TA-713-716 (Reviews), C.R. List 2, Doc. No. 38

at 1 (April 27, 2001) (“Dalmine Pre-Hearing Br.”). Plaintiffs

characterize the ITC’s determination that Italy’s imports would

likely have a discernible adverse impact as based solely on the

finding that Dalmine maintains an active channel of distribution in

the United States. See id. at 36-37.

The ITC’s determination evidences that Italy’s imports during

the period of the original investigation accounted for only a tiny

portion of apparent U.S. consumption of OCTG. See Commission’s

Views, C.R. List 2, Doc. No. 91 at 17. However, the ITC argues

that its determination regarding Italy is based on more than its

finding that Italy maintains an active channel of distribution in

the U.S. See Def.’s Opp’n Pls.’ Mot. J. Agency Rec. 19-20 (“Def.’s

Opp’n”). The determination states that “[p]roducers in each of the

subject countries continue to produce and export . . . volumes of

the subject casing and tubing.” Commission’s Views, C.R. List 2,

Doc. No. 91 at 18. The determination also states that the subject

producers can “produce other tubular products on the same machinery
Consol. Court No. 01-00692 Page 10

used to produce the subject merchandise and can shift production

between the subject merchandise and other products.” Id.3

Further, the determination appears to state that prevailing

conditions of competition in the U.S. market, specifically the

importance of price considerations among U.S. buyers of OCTG, would

give subject producers an incentive to import. See Commission’s

Views, C.R. List 2, Doc. No. 91 at 18, 18 n.57 (citing Oil Country

Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico,

Staff Report to the Commission on Investigations Nos. 701-TA-364

(Review) and 731-TA-707-711 and 713-716 (Review), Attach. to Mem.

from Lynn Featherstone, Director, Office of Investigations, to the

Commission, Re: Investigations Nos. 701-TA-364 (Review) and 731-TA-

711 and 713-716 (Review): Oil Country Tubular Goods from Italy

Argentina, Italy, Japan, Korea, and Mexico – Staff Report (May 31,

2001), C.R. List 2, Doc. No. 87 at Page II-27 (“Staff Report”)).

In addition, the determination appears to answer the

plaintiffs’ objections. First, it relies only on data from

3
At first glance, it appears that neither this statement nor
the one preceding it are supported by citation to the record.
Such failure of citation might present a serious problem, but
similar statements are made by the ITC elsewhere in the
determination, and appear in conjunction with appropriate record
citations. See Commission’s Views, C.R. List 2 Doc. 91 at 27, 27
nn.100-101 & 30, 30 nn.111, 113-115 & 31, 31 nn.116-117 & 35, 35
n. 136. While the court feels that the ITC must endeavor to be
more thorough with its citations in future determinations, it
appears that, considered in light of these other record
citations, the ITC has not made any conclusory statements here.
Consol. Court No. 01-00692 Page 11

Dalmine, rather than data from Arvedi, the Italian producer that

ceased production. Indeed, as Arvedi did not participate in this

review, see Commission’s Views, C.R. List 2, Doc. No. 91 at 3-4,

there is no information from Arvedi upon which the Commission could

have relied. Second, while the plaintiffs cite Dalmine’s own

contention that demand for OCTG in its home market is high and

increasing, Dalmine Pre-Hearing Br., C.R. List 2, Doc. No. 38 at 1,

the record evidence shows that Dalmine has actually sold less and

less OCTG internally each year. See Staff Report, C.R. List 2,

Doc. No 87 at Table IV-6). Exports, on the other hand, comprise

the majority of its sales. See Commission’s Views, C.R. List 2,

Doc. No. 91 at 35, 35 n.136 (citing Staff Report, C.R. List 2, Doc.

No 87 at Table IV-6). Finally, although Dalmine may be operating

at near capacity in its production of OCTG, the ease with which

OCTG producers can switch other lines over to the manufacture of

OCTG means that high capacity utilization on OCTG does not

necessarily result in an insurmountable cap on OCTG production.

See Commission’s Views, C.R. List 2, Doc. No. 91 at 27 n.100, n.101

& 29 n.112.

Accordingly, it appears that while Italy’s imports to the U.S.

have historically been small, Italy maintains the ability to export

product to the U.S. in an amount that would be discernible.

Moreover, Italy is actually dependent on exports for the majority

of its OCTG sales. Finally, given the importance of price
Consol. Court No. 01-00692 Page 12

considerations to U.S. purchasers of OCTG, Italy may have an

incentive to export OCTG to the U.S. in the event of revocation.

This evidence appears to the court to satisfy the standard that

“such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938) (citations omitted).

ii. Likely competition

However, the plaintiffs here also challenge the ITC’s

determination that subject imports would likely compete with each

other and with the domestic product. In deciding whether subject

imports would be likely to compete with each other and the domestic

product in the event of revocation, the ITC traditionally considers

four subfactors: (1) the degree of fungibility between the imports

from different countries and the domestic like product, (2) the

existence of common or similar channels of distribution for imports

and the domestic like product, (3) the presence of sales or offers

to sell in the same geographical markets, and (4) whether the

imports are simultaneously present in the market. See, e.g.,

Wieland Werke, AG v. United States, 13 CIT 561, 563, 718 F. Supp.

50, 52 (1989) (citation omitted). The plaintiffs here challenge

the ITC’s determination with regard to all four subfactors, which

the court will discuss in turn.

1. Fungibility
Consol. Court No. 01-00692 Page 13

With regard to the degree of fungibility between the subject

imports and the domestic like product, the plaintiffs make two

arguments. First, they note that the subject producers specialize

in either seamless or welded OCTG. Pls.’ Mot. 38.4 The plaintiffs

argue that the record reveals only limited fungibility between

seamless and welded products, and that the price data on the record

reveals that seamless products command a premium over welded

products. Id. at 38-39. Plaintiffs argue that wherever cheaper

welded pipe could be used in an application, the consumer would

only purchase welded pipe, and that, accordingly, even though

seamless pipe might technically be substitutable, the consumer

would not perceive it as such. See id. at 39. Second, the

plaintiffs argue that Japan specializes in the production of niche

products that are not available from other producers. Id.

The ITC’s determination addresses both arguments. First, the

ITC notes that the original investigation found that welded and

seamless products compete in certain applications. Commission’s

Views, C.R. List 2, Doc. No. 91 at 19. The determination does not,

however, address the question of whether price differentials

4
Plaintiffs allege that OCTG producers focus on either
welded or seamless product. Pls.’ Mot. 38. They further allege
that they, as well as the Mexican producer TAMSA, produce only
seamless product. See id. The Korean producers, on the other
hand, make only welded OCTG, as well as the remaining Argentine
and Mexican producers. See id.
Domestic production of OCTG is evenly divided between
welded and seamless production. See Staff Report, C.R. List 2,
Doc. No 87 at Table I-3.
Consol. Court No. 01-00692 Page 14

between seamless and welded pipe suggest that purchasers would not

substitute welded pipe for seamless. In its opposition to

plaintiff’s motion, the ITC contends that the plaintiffs’ argument

on this point is misplaced, because the majority of purchasers

indicated that foreign and domestic OCTG are “always”

interchangeable, thus making clear that the price differential does

not impact perceptions of fungibility. Def.’s Opp’n 16;

Commission’s Views, C.R. List 2, Doc. No. 91 at 20, 20 n.66.

Moreover, the ITC argues that the record evidence cited by

plaintiff either does not provide meaningful comparisons regarding

price differentials or demonstrates that such differentials are not

particularly great. Def.’s Opp’n 15, 15 n.6 (citing Staff Report,

C.R. List 2, Doc. No. 87 at Tables V-1 and V-2).

Second, the ITC, in its determination, addressed the

contention that Japanese OCTG was not fungible with other OCTG

because Japan produced high-quality “niche” products. The ITC

noted that in its original determination, it found that, while

Japan did produce certain unique product lines that had no

competition from either domestic or other foreign companies, the

majority of Japan’s exports were of products that did have foreign

and domestic analogues. Commission’s Views, C.R. List 2, Doc. No.

91 at 19 n.60 (citing Original Determ., P.R. List 1, Doc. No. 116

at I-23). The ITC also found that the majority of purchaser

responses in both the original determination and the reviews
Consol. Court No. 01-00692 Page 15

indicated that Japanese OCTG remained relatively fungible with the

domestic like product and with other subject imports. See

Commission’s Views, C.R. List 2, Doc No. 91 at 19 n.61, 21, 21

n.71.5

Regarding plaintiffs’ argument on the fungibility of welded

and seamless OCTG, the record regarding actual price differentials

is sparse. The ITC asked purchasers and importers of OCTG whether

subject and domestic OCTG were interchangeable: the majority of

responses indicate that they were, but did not indicate whether the

respondents were basing their answers on technical substitutability

or commercial substitutability. See Staff Report, C.R. List 2,

Doc. No. 87 at Pages II-27 through II-29. However, domestic

industry provided to the ITC a table that shows average prices for

welded and seamless casing and tubing over a period of a year.

Staff Report, C.R. List 2, Doc. No 87 at Table V-16. During that

time, seamless tubing in general commanded a premium over welded

tubing ranging from $29 per short ton to $115 per short ton. Id.

Seamless casing commanded a premium over welded casing ranging from

$32 per short ton to $57 per short ton. Id. Consistent with

plaintiffs’ arguments here, the ITC’s staff itself noted that the

5
The determination also states that “industry witness
testimony” supported its fungibility determination with respect
to Japan. Commission’s Views, C.R. List 2, Doc. No. 91 at 21.
It appears, however, that the Staff Report’s discussion of this
is taken entirely from producer and importer questionnaire
responses. See Staff Report, C.R. List 2, Doc. No. 87 at II-29.
Consol. Court No. 01-00692 Page 16

consistent difference in pricing must reflect some differences in

end uses between seamless and welded OCTG. Id. at Page II-10 n.32.

Nonetheless, the ITC staff indicated that the moderate nature of

the premium could indicate that a large part of the U.S. OCTG

market still experienced competition between welded and seamless

OCTG, as was found in the original investigation. Id.; see also

Original Determ., P.R. List 1, Doc. No. 116 at I-23.

Thus, while it appears clear that seamless goods command a

premium over welded goods, it is not certain, on this record, what

this price difference means in actual practice. As the ITC staff

indicated, the “moderate nature” of the difference could indicate

that competition was present, or it could not. The information

that would enable the court to discern whether the price difference

actually makes welded and seamless product nonfungible is simply

not contained in the record. Normally, such a lack of evidence on

an important issue would result in a remand. However, in this

case, the court believes that the arguments on this issue are moot

with regard to at least one of the plaintiffs. With regard to the

remaining two, the court believes this issue has either been

waived, or to the extent it was not waived, results in a de minimis

harm, and is consequently moot.

With regard to Plaintiff Siderca, the court notes that

cumulation is not a producer-by-producer analysis. Rather, the

statute calls for the ITC to determine whether the production of
Consol. Court No. 01-00692 Page 17

entire countries should be grouped together. See 19 U.S.C. §

1675a(a)(7). Of the countries involved in these reviews, only

Korea specializes in the manufacture of welded products. See

Revision to the Staff Report, Attach. to Mem. from Lynn

Featherstone, Director, Office of Investigations, to the

Commission; Re: Investigations Nos. 701-TA-364 (Review) and 731-TA-

711 and 713-716 (Review): Oil Country Tubular Goods from Argentina,

Italy, Japan, Korea, and Mexico – Revisions to Staff Report (June

6, 2001), C.R. List 2, Doc. No. 76 at Table C-9 (“Staff Revision”);

Staff Report, CR List 2, Doc. No. 87 at Tables C-10 through C-13.

Mexico and Argentina have mixed production of welded and seamless

goods. See Staff Revision at Table C-9, Staff Report at Table C-

13. Japan and Italy engage only in seamless manufacture. See

Staff Report, CR List 2, Doc. No. 87 at Tables C-10 & C-11. U.S.

production is nearly evenly split between the manufacture of welded

and seamless products. See Staff Report, C.R. List 2, Doc. No. 87

at Table I-3.

It follows that any argument that plaintiff Siderca might have

regarding cumulation of its imports here appears to have no effect.

The nation of Argentina, which is the proper subject of the

cumulation analysis, engages in both seamless and welded

manufacture and accordingly can compete as regards both types of

products. With regard to plaintiff Siderca, therefore, the issue

is moot. Unlike Siderca, however, plaintiffs Dalmine and NKK Tubes
Consol. Court No. 01-00692 Page 18

are based in countries that engage solely in seamless manufacture.

Nevertheless, their arguments against cumulation must also be

rejected.

With regard to plaintiffs Dalmine and NKK Tubes, the court

first notes that Dalmine and NKK Tubes will inevitably find their

countries’ production cumulated with at least some welded

production. The fungibility analysis looks at whether goods,

considered on a nation-by-nation basis, are interchangeable enough

to support an inference of a “reasonable overlap of competition.”

Wieland Werke, 13 CIT 561 at 563, 718 F. Supp. at 52. Even if

plaintiffs are completely correct in viewing seamless and welded

product as nonfungible, to the extent that countries involved in

these reviews (i.e., Mexico and Argentina) produce both seamless

and welded OCTG in considerable quantities, their production would

have a “reasonable overlap of competition” with that of seamless-

producing nations like Japan and Italy. Accordingly, regardless of

whether price comparisons between the Korean welded product and

seamless production indicate that the Korean product is less

competitive, plaintiffs’ nations’ seamless production would be

cumulated with that of nations producing welded OCTG. In addition,

two other considerations undermine the plaintiffs’ claim.

First, the “likely overlap of competition” analysis undertaken

here is very much like the analysis the ITC undertakes in

determining what the “domestic like product” for a particular
Consol. Court No. 01-00692 Page 19

investigation will be. Compare Wieland Werke, 13 CIT at 563, 718

F. Supp. at 52 with Timken Co. v. United States, 20 CIT 76, 80, 913

F. Supp. 580, 584 (1996). Particularly, both determinations

require a fungibility analysis. In the original investigations,

the ITC determined that drill pipe should be considered a separate

product from other OCTG, but did not find that welded and seamless

OCTG should be considered separate like products. See Staff

Report, C.R. Doc. No. 87 at Page I-25. In responding to the notice

of initiation in these reviews, the plaintiffs took no position

with respect to this like product determination, while reserving

their right to comment at a later time. See id. at n.16. However,

they do not object to it anywhere in their briefs, or call

attention to any objections lodged during the investigation.

It is true that evidence of fungibility sufficient to underpin

a like product analysis may not be sufficient to underpin other

analyses, such as the likely competition or injury analyses. See

BIC Corp. v. United States, 21 CIT 448, 455-56, 964 F. Supp. 391,

399-400 (1997); Acciai Speciali Terni, S.p.A. v. United States, 19

CIT 1051, 1063-64 (1995). However, in this case, it appears to the

court that the plaintiffs complain of a harm that should have been

addressed at the like product stage. While plaintiffs complain

that seamless and welded goods would not compete because of price

differentials, because the like product analysis has traditionally

been concerned with price, Timken, 20 CIT at 80, 913 F. Supp. at
Consol. Court No. 01-00692 Page 20

584, plaintiffs’ fungibility argument is not necessarily dependent

on the unique context of the likely competition analysis.

Moreover, if the plaintiff is correct that seamless and welded

goods are simply not commercially fungible, discussion of this

issue at the like product stage would have made sense and permitted

appropriate investigation and judicial review of the issue.

Because plaintiffs failed to raise their argument regarding

fungibility when it was most appropriate to do so, the argument is

in some sense, waived.

Second, even if the plaintiffs’ contentions regarding the

fungibility of seamless and welded OCTG are taken as true, the

injury they complain of is so small as to be de minimis, and

therefore moot. The rule of de minimis is a general rule of legal

construction and forms part of the background against which all

statutes are construed. Wis. Dep’t of Revenue v. William Wrigley,

Jr. Co., 505 U.S. 214, 231 (1992). However, the rule is applied

only where it is consonant with the intent of the framers of the

law. Id.; Alcan Aluminum Corp. v. United States, 165 F.3d 898, 903

(Fed. Cir. 1999); Ciba-Geigy Corp. v. United States, 25 CIT 1252,

1269, 178 F. Supp. 2d 1336, 1352 (2001); Former Employees of Barry

Callebaut v. Herman, 25 CIT 1226, 1233-34, 177 F. Supp. 2d 1304,

1311 (2001), rev’d on other grounds at Former Employees of Barry

Callebaut v. Chao, 357 F.3d 1377 (Fed. Cir. 2004). The text of the

statute clearly allows cumulation where imports are “likely to
Consol. Court No. 01-00692 Page 21

compete” with one another. 19 U.S.C. § 1675a(a)(7). Accordingly,

the question the court must answer is whether the application of

the de minimis rule in this context is consonant with determining

whether imports are “likely to compete.” Given that all

countries in the review but Korea produce seamless product,

plaintiffs NKK Tubes and Dalmine can only reasonably complain that

their countries’ production was improperly cumulated with Korea’s

welded production. In 2000, Korea had an OCTG production capacity

of less than 3% of NKK Tubes’,6 Mexico’s, Argentina’s, and Italy’s

combined capacity. Compare Staff Report, C.R. List 2, Doc. No. 87

at Table IV-97 with Foreign Producers’/Exporters’ Questionnaires,

CR List 2, Docs. Nos. 105, 109, 113 & 114 at Questions II-6 and

II-16. Accordingly, even if, as plaintiffs allege, welded and

seamless OCTG are commercially nonfungible, Korea’s production is

so comparatively small as to be de minimis. Again, because Mexico

and Argentina produce both kinds of OCTG, Dalmine and NKK Tubes

will inevitably find their countries’ production cumulated with at

least some welded production. See Foreign Producers’/Exporters’

6
NKK Tubes was the only Japanese producer to respond to the
ITC’s inquiries. Staff Report, C.R. List 2, Doc. No. 87 at Page
II-13. U.S. producers estimated that the non-responding Japanese
producers had a potential to supply another 3.5 million short
tons of seamless OCTG. Id.
7
It should be noted, however, that the ITC relied, during
its likely volume discussion, on Korea’s unused capacity to make
all pipe and tube products, which in 2000 was significant. See
Commission’s Views, C.R. List 2, Doc. No. 91 at 32.
Consol. Court No. 01-00692 Page 22

Questionnaires, CR List 2, Docs. Nos. 104 & 107 at Questions II-6

and II-16.

Given the plaintiffs’ posture, the answer to the question

posed to the court must be that the application of the de minimis

rule here does no violence to the cumulation statute. The harm

suffered by the plaintiffs due to their countries’ cumulation with

other countries stems from the increase in volume, price effects,

and impact that results therefrom. In this case, however, Korea’s

production capacity is simply overwhelmed by that of the other

producers, to whom plaintiffs’ fungibility argument does not apply.

Were plaintiffs Korean producers, the harm they would have to

allege here as a result of the ITC’s fungibility finding would no

longer be de minimis, but as it stands plaintiffs cannot assert

that such a magnitude of harm would redound to them.

Finally, with regard to plaintiffs’ argument that Japan

furnishes only niche products and therefore does not compete with

either other foreign or with domestic OCTG, the ITC’s record

clearly shows that such niche products did not account for more

than twenty percent of Japanese exports during the original period

of investigation. See Commission’s Views, C.R. List 2, Doc. No. 91

at 19, 19 n. 60. Thus, while some portion of the Japanese export

product is unlikely to compete with subject or domestic

merchandise, a significant portion of Japanese production would

compete in the U.S. market with similar goods of either foreign or
Consol. Court No. 01-00692 Page 23

domestic manufacture. Moreover, producer, purchaser, and importer

responses generally reported that Japanese OCTG was fungible with

the other OCTG covered in this review and with domestic product.

Id. at 20. As only a “reasonable overlap” of competition is

statutorily required, see, e.g., Wieland Werke, 13 CIT at 563, 718

F. Supp. at 52, the court agrees with the ITC that while there may

be some Japanese specialty products that have no analogues in the

market, the majority of Japanese production would compete, and

would be fungible with the other products in this review.

2. Channels of distribution

Plaintiffs also take issue with the ITC’s determination

regarding whether or not subject imports are likely to compete in

the same channels of distribution with one another and with

domestic product. Pls.’ Mot. 37. As in the original

determination, the ITC found that virtually all OCTG in the U.S. is

sold to distributors, who then sell to end users. See Commission’s

Views, C.R. List 2, Doc. No. 91 at 21. Plaintiffs argue, however,

that as members of the Tenaris Group,8 they focus on direct sales

to end users, and their products would therefore not move in the

8
The Tenaris Group is a global alliance of pipe and tube
manufacturers. See Commission’s Views, CR List 2, Doc. No. 91 at
32-33. The responding subject producers in this investigation
that belong to the group are Siderca (Argentina), Dalmine
(Italy), TAMSA (Mexico), and NKK (Japan). Id. at 28. The
Tenaris companies operate as a unit, submitting a single bid for
contracts to supply OCTG and related services. Id. at 28.
Consol. Court No. 01-00692 Page 24

distributor market that accounts for the majority of OCTG purchases

in the U.S. Pls.’ Mot. 37.

The ITC dealt with this claim in its determination. Citing

the TAMSA post-hearing brief, the ITC argues that national market

dynamics affect the distribution channels employed by the Tenaris

Group. See Commission’s Views, C.R. List 2, Doc. No. 91 at 21-22,

22 n.73. To the extent that Tenaris members have sold product in

the U.S. during the period of the antidumping order, they have used

distributors in a substantial portion of their U.S. sales. Id.

Moreover, the distributor market remains the primary method by

which OCTG is sold in the U.S., and U.S. distributors currently

purchase substantial volumes of OCTG from subject country

producers. See id. at 22.

It seems to the court that plaintiffs’ argument rests entirely

on what they would “prefer” to do. However, their past and present

behavior in the U.S. market shows they have no real aversion to

selling to distributors. Moreover, sales to end-users are not

currently a favored method of distribution in the United States.

While it is not unlikely, in the event of revocation of the

antidumping order, that plaintiffs would begin to cultivate end-

users clients, there is no reason to believe that they would not

also avail themselves of the existing distributor market.

3. The same geographical markets

Plaintiffs’ challenge to the ITC’s determination regarding
Consol. Court No. 01-00692 Page 25

whether subject merchandise and domestic goods will compete in the

same geographic markets is directed mainly at whether the correct

standard of “likely” was used. See Pls.’ Mot. 17. As the court

has already decided to treat the likeliness question in such a way

as to be governed by substantial evidence review, however, the

court will here resolve the issue as one of whether evidence

amassed by the ITC regarding geographical markets is sufficient to

support a finding of “likely” competition. Plaintiffs argue that

the ITC rested entirely on its findings in the original

determination to hold that subject and domestic merchandise would

likely compete in the same geographic markets in the event of

revocation of the antidumping order. Id. Plaintiffs argue that

the original reviews, at best, show that it is “possible” that the

subject and domestic merchandise would compete in the same markets,

and that, in order to show a “likelihood” of such competition, new

and affirmative evidence would have to be provided. Id.

Plaintiffs appear to mistake the standard that is used to

determine cumulation. Evaluating the four factors of fungibility,

channels of distribution, geographic markets, and simultaneous

presence, the ITC must determine whether or not it is “likely” that

the subject and domestic merchandise will compete inter se. There

is no requirement that the ITC find that all four subfactors are

independently supported by a “likeliness” determination. See,

e.g., Wieland Werke, AG v. United States, 13 CIT 561, 563, 718 F.
Consol. Court No. 01-00692 Page 26

Supp. 50, 52 (1989) (citation omitted).

At any rate, the ITC’s determination clearly relies on more

than just information from the original determination. The ITC

found that most large distributors of OCTG are located in Texas and

that most distributors sell nationwide. Commission’s Views, C.R.

List 2, Doc. No. 91 at 23. Importers similarly reported selling

nationwide. Id. Given that the market appears to be “nationwide,”

it is difficult to see how plaintiffs can argue that subject

imports and domestic merchandise would not compete in the same

geographic market. Indeed, plaintiffs do not argue that there is

any other geographic market or submarket that is relevant. See

Pls.’ Mot. 17. Accordingly, the evidence compiled here is

sufficient to support a determination that foreign and domestic

OCTG would compete in the same geographical market.

4. Simultaneous competition

Plaintiffs also challenge the fourth subfactor in the ITC’s

analysis, which deals with whether subject imports and the domestic

product would compete simultaneously in the market. In particular,

plaintiffs state that the ITC fails to discuss a time-frame for

when shipments to the United States would occur. See Pls.’ Reply

Br. 5. Plaintiffs do not point to record evidence suggesting that

OCTG is somehow a seasonal good. Id. Nor do they challenge the

ITC’s statement that “[n]othing in the record of these reviews

suggests that if the orders are revoked subject imports and the
Consol. Court No. 01-00692 Page 27

domestic like product would not be simultaneously present in the

domestic market.” Id.; Commission’s Views, C.R. List 2, Doc. No.

91 at 23. The ITC rather found that the original determinations

showed that each of the subject countries imported product each

year of the original investigations. Commission’s Views, C.R. List

2, Doc. No. 91 at 23. The proposition to be supported here is that

steel products are not seasonal goods such that domestic and

foreign producers would sell the goods at mutually exclusive time

periods. It appears to the Court that the original determination

provides such evidence as would enable a reasonable mind to find

that the proposition is supported.

Having arrived at the end of the cumulation analysis, it

appears that both the ITC’s determinations regarding discernible

adverse impact and likely competition are supported by substantial

evidence on the record. Accordingly, the court finds that the

ITC’s overall cumulation determination is supported by substantial

evidence.

B. Likely Recurrence of Material Injury

Having found that the ITC’s cumulation decision is supported

by substantial evidence on the record, the Court will discuss the

ITC’s finding that revocation of the antidumping orders is likely

to lead to a continuation or recurrence of material injury to the

domestic OCTG industry within a reasonably foreseeable period of
Consol. Court No. 01-00692 Page 28

time. To make an affirmative finding that material injury is

likely to recur, the ITC is statutorily required to evaluate three

factors and determine that these factors support a finding that

revocation would lead to material injury in a “reasonably

foreseeable” period of time. See 19 U.S.C. § 1675a(a)(1). These

three factors are (i) the likely volume of subject imports, (ii)

the likely price effects of subject imports, and (iii) the likely

impact of subject imports. Id. Plaintiffs challenge the ITC’s

findings on all three factors; the Court discusses each factor in

turn.

i. Likely volume

The first factor concerns the likely volume of subject imports

in the event of revocation. See 19 U.S.C. § 1675a(a)(2)(A)-(D).

In concluding that that imports would likely be significant in the

event of revocation of the antidumping order, the ITC relied

primarily on data showing the growing U.S. market share of subject

imports, the subject producers’ available production capacity, and

their capacity to shift production away from other products and

toward OCTG manufacture. Commission’s Views, C.R. List 2, Doc. No.

91 at 29-32. The ITC also relied on the Tenaris Group’s global

sales focus, the high value of OCTG products relative to other pipe

and tube products, and the high prices available in the U.S.

market, relative to the global OCTG market. Id. at 32-33.

Finally, the ITC relied on the effects of U.S. and foreign
Consol. Court No. 01-00692 Page 29

antidumping orders, and its finding that the reviewed countries are

focused on export markets. Id. at 33-35.

Plaintiffs do not challenge the ITC’s findings that the

cumulated subject producers have significant available capacity, or

that the U.S. market has attractive pricing compared to the global

market. Rather, plaintiffs make three arguments to the effect

that, despite the subject producers’ production capacity and the

economic attractions of the U.S. market, the subject producers will

not export in any great quantity. First, plaintiffs argue that the

record evidence demonstrates that the Tenaris Group’s focus on

long-term contracts would prevent it from re-entering the U.S.

market in any significant way. Pls.’ Mot. 27. Second, plaintiffs

challenge whether evidence showing that OCTG is a high-value good

relative to other products is sufficient to demonstrate an

incentive for subject producers to ship a significant volume of

goods. Id. at 28. Third, plaintiffs challenge the relevance of

U.S. antidumping orders on OCTG and related products. Id. at 30.

First, regarding the alleged “export-focus” of the subject

producers, the ITC recognized the Tenaris Group as the dominant

OCTG supplier in every world market except the United States. See

Commission’s Views, C.R. List 2, Doc. No. 91 at 32. Many of

Tenaris’ foreign customers also operate in the United States. Id.

at 33. The ITC concluded, accordingly, that in the event of

revocation of the antidumping order, the Tenaris Group would have
Consol. Court No. 01-00692 Page 30

a “strong incentive” to enter the U.S. market, because (a) the U.S.

represents the last available unclaimed market for the Group and

(b) because the Group already have established business

relationships with customers operating in the U.S. market. Id. at

33.

The plaintiffs allege that the record shows that Tenaris Group

members have long-term commitments to supply OCTG to customers

outside the United States. Pls.’ Mot. 27. Plaintiffs claim that

because of the high capacity utilization among group members, any

significant increase in exports to the U.S. market would require

that the Tenaris Group break these commitments. Id. at 28.

Plaintiffs argue that Tenaris Group members would not be willing to

go so far merely in order to take advantage of the U.S. market.

The ITC’s position appears to be that the U.S. market is

attractive enough to justify breaking such commitments. The U.S.

represents the last market in which Tenaris has not achieved

dominance; moreover, it is the largest market for OCTG in the

world. See Commission’s Views, C.R. List 2, Doc. No. 91 at 32, 33.

U.S. prices for OCTG run between twenty and forty percent above

Tenaris’ worldwide prices. See id. at 33 n.128. Given the Group’s

already established business relationships with U.S. customers,

significant entry into the U.S. market could reasonably be seen as

enhancing the Group’s long-term contracts. Id. at 33, 33 n.124.

Finally, the plaintiffs’ argument does not detract from the ITC’s
Consol. Court No. 01-00692 Page 31

finding that non-Tenaris Group producers, such as the majority of

Japanese producers, have substantial capacity available for export

to the U.S. See id. at 31-32.

The court holds, therefore, that the ITC has provided

sufficient explanation for the conclusion that the Tenaris Group’s

long-term commitments and/or end-user focus do not stand in the way

of significant imports. Even if high capacity utilization

prohibits the Tenaris Group members from making more OCTG to

fulfill U.S. market demands, the size of the market, the prices

available, and the established presence of Tenaris customers, all

provide a significant economic incentive. The ITC did not ignore

the argument that end-user focus and high capacity utilization

would serve to limit Tenaris group exports. Rather, it explained

exactly why it found the claim regarding such a limit not to be

compelling.

Second, plaintiffs challenge whether evidence showing that

OCTG is a high-value good relative to other products is sufficient

to demonstrate an incentive for subject producers to ship a

significant volume of goods. Pls.’ Mot. 28. Plaintiffs claim that

the ITC does not discuss how the high-value of OCTG explains away

the subject producers’ high capacity utilization, long-term

contracts, and other long-standing commitments to customers. Id.

at 28-29. Moreover, plaintiffs argue that because the Tenaris

Group provides full-service supply arrangements for end-users, the
Consol. Court No. 01-00692 Page 32

price of an individual product is of lesser importance. Id. at 29.

The ITC’s determination states that OCTG generates very high

profit margins relative to other pipe and tube products. See

Commission’s Views, C.R. List 2, Doc. No. 91 at 33. Moreover, the

ITC states that, because various pipe and tube products are all

produced on the same machinery, subject producers can shift

production away from other pipe and tube products and toward OCTG

with relative ease. Id. at 30, 30 n.112. It appears that this

brief ITC argument on the value of OCTG and product-shifting is

meant to respond to the issue of the subject producers’ high

capacity utilization by identifying a way in which exports could be

increased. Id. at 33.

The court has already held that the ITC’s discussion of the

relatively high prices in the U.S. market, the size of the market,

and the presence of Tenaris customers in the market provide a

significant rebuttal to the question of capacity restraints and

long-term contracts. The ITC’s point regarding OCTG’s value and

product-shifting merely reinforces the finding that some of the

subject producers’ large production capacity could profitably be

redirected toward the U.S. market.

Third, plaintiffs challenge the relevance of U.S. antidumping

orders on OCTG and related products to the “likely volume”

analysis. Pls.’ Mot. 30. The ITC found that Argentine, Japanese,

and Mexican producers are subject to antidumping orders on
Consol. Court No. 01-00692 Page 33

standard, line and pressure pipe, a pipe product produced in the

same production facilities as OCTG. Commission’s Views, C.R. List

2, Doc. No. 91 at 34. The ITC also found that Korean producers

were subject to U.S. import quotas and antidumping orders on

similar pipe products, as well as a Canadian antidumping order on

casing. Id. at 34-35.

The ITC is statutorily required to take into account “the

existence of barriers to the importation of such merchandise into

countries other than the United States.” 19 U.S.C. §

1675a(a)(2)(C). Plaintiff complains that the ITC impermissibly

considered U.S. barriers as well as foreign barriers. Pls.’ Mot.

30. However, while § 1675a(a) requires the ITC to look at certain

factors, such as barriers to the importation of merchandise in

other countries, it makes clear that those factors are non-

exclusive, and that the ITC must consider “all relevant economic

factors.” 19 U.S.C. § 1675a(a). Presumably, these may include the

existence of barriers to the importation into the U.S. of pipe

products so similar to OCTG that they are actually made on the same

production lines. Because barriers to the importation of products

similar to subject merchandise may encourage product-shifting

toward OCTG, and thus, more OCTG in the U.S. market, the existence

of U.S. barriers to import of similar products is clearly

economically relevant.

Accordingly, the evidence provided by the ITC is sufficient to
Consol. Court No. 01-00692 Page 34

support the conclusion that there would likely be a significant

volume of imports into the U.S. upon revocation of the orders,

owing to non-Tenaris Group subject producers’ available capacity,

and the economic incentives that Tenaris Group members have to

enter the last market in which they do not have dominance, in which

prices are high, and where they already have established customers.

ii. Likely price effects

Having discussed the ITC’s treatment of the likely volume

factor in its material injury determination, the Court will

consider the second factor: likely price effects of subject imports

in the event of revocation. See 19 U.S.C. § 1675a(a)(1). The ITC

is statutorily required to consider two subfactors in evaluating

the likely price effects. These are (1) whether there is likely to

be significant underselling by the subject imports as compared with

the domestic like product and (2) whether the subject imports are

likely to enter the United States at prices that would have a

significant depressing or suppressing effect on the price of

domestic like products. See 19 U.S.C. § 1675a(a)(3). In its

determination, the ITC noted that both factors were found satisfied

in the original investigations. See Commission’s Views, C.R. List

2, Doc. No. 91 at 35-36.

In the sunset review, the ITC found that, to the extent that

direct selling comparisons can be made, subject OCTG generally

undersold the domestic like product during the period under review.
Consol. Court No. 01-00692 Page 35

Id. at 36. The ITC also found that subject imports are highly

substitutable for domestic product and that price is a very

important factor in OCTG purchasing decisions. Id. Accordingly,

the ITC found that, in the event of revocation of the antidumping

order, the subject producers would likely seek to compete in the

U.S. market based on price. Id. at 37. Furthermore, the ITC found

that such competition would likely have significant depressing or

suppressing effects on the prices of the domestic like product.

Id.

Plaintiffs challenge the ITC’s determination by arguing that

the record evidence shows that domestic prices had risen in 2000.

Pls.’ Mot. 31.9 Indeed, the record demonstrates that, generally

speaking, domestic prices fell in 1999 and rose in 2000, although

they did not recover to 1998 levels. See Commission’s Views, C.R.

List 2, Doc. No. 91 at 36, 36 n.141. Plaintiffs’ argument,

however, does not appear to be on point. Even if prices did

increase somewhat during 2000, this does not undermine the ITC’s

conclusion that the subject producers would seek to compete on the

basis of price, and that their underselling would have price

suppressing or depressing effects. Rather, the plaintiffs merely

observe that the price to be undermined is somewhat higher than it

was previously.

9
Plaintiff also argues that the record demonstrates that
prices would continue to rise despite the revocation of the
orders, but provides no citations. Pls.’ Mot. 31.
Consol. Court No. 01-00692 Page 36

Plaintiffs further argue that plaintiff Siderca’s assigned

dumping margin of 1.36% demonstrates that in the event of

revocation, underselling by plaintiffs would not be particularly

great. Pls.’ Reply Br. 8. However, it remains that this does not

address the price effects of plaintiffs NKK Tubes and Dalmine, both

of which have significantly higher margins. See Commission’s

Views, C.R. List 2, Doc. No. 91 at 16 n.51. Nor does it take into

account that plaintiff Siderca’s imports have been cumulated with

those of Italy, Korea, Japan, and Mexico. Accordingly, plaintiffs

have not pointed to any important factor that the ITC ignored in

making its price effects determination.

The ITC’s determination demonstrates that the behavior of the

producers reviewed here caused price effects in the past, that

their goods are substitutable for domestic goods, and that they are

likely to compete on the basis of price. The ITC has thus provided

“such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938) (citations omitted).

ii. Likely impact

The third factor that the ITC is required to investigate

concerns the likely impact of subject imports in the event of

revocation. See 19 U.S.C. § 1675a(a)(2)(A)-(D). The original

determinations demonstrated that the subject producers’ imports led

to a decline in domestic producers’ market share, poor operating
Consol. Court No. 01-00692 Page 37

performance, and low capacity utilization. See Commission’s Views,

C.R. List 2, Doc. No. 91 at 37. The original investigation also

determined that subject producers’ imports had led to price

suppression. See id. at 38.

However, the determination at issue here found that the

domestic industry had markedly recovered. As the ITC stated, “we do

not find the industry to be currently vulnerable.” Id. at 39.

Nonetheless, the ITC found that while currently healthy, the sheer

volume of subject imports that would be likely in the event of

price revocation, along with their cumulated price effects, would

be enough to likely cause a recurrence of material injury even to

this now recovered industry. Id. at 39-40.

Plaintiffs take issue with this finding, given the current

state of the U.S. industry. Pls.’ Mot. 32-34. Plaintiffs point to

strong performance indicators for domestic producers, as well as

statements by officials of domestic companies forecasting continued

strong demand for OCTG. Id. at 34-35.

As the ITC itself admitted, the domestic OCTG industry is

currently healthy. Commission’s Views, C.R. List 2, Doc. No. 91 at

38-39. There appears to be some indication that demand will

remain strong. Id. at 39. Yet the original determinations found

that even in a time of increasing demand, the domestic producers

quickly lost market share to the subject producers. Id. at 39.

Moreover, the sheer volume of subject producers’ production
Consol. Court No. 01-00692 Page 38

capacity, coupled with their apparently low prices, support the

conclusion that even a healthy industry could be materially injured

were the order here revoked.

The court notes that in applying the substantial evidence

standard, it is not allowed to re-decide the question before the

agency. Rather, it must only decide whether the agency has

provided evidence that would be adequate to “a reasonable mind.”

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (citations

omitted). Reasonable minds may differ, but a determination does

not fail for lack of substantial evidence on that account.

Accordingly, the court holds that the ITC has provided

substantial evidence to ground its finding that the probable or

“likely” impact of subject imports would be significant, enough so

as to support a finding that material injury would likely recur.

CONCLUSION

The Court affirms the ITC’s use of the term “likely” as

applied throughout its remand determination. The Court affirms the

agency’s findings on cumulation of the subject imports. The court

also affirms the ITC’s determination regarding the likely volume,

price effects, and impact of subject imports in the event of

revocation of the antidumping orders on SLP from Argentina, Italy,
Consol. Court No. 01-00692 Page 39

Japan, Korea, and Mexico. Judgment will be entered accordingly.

/s/
Donald C. Pogue
Judge

Dated: August 26, 2005
New York, New York