U.S. Steel Group v. United States

Slip Op. 01-110

United States Court of International Trade

U.S. STEEL GROUP, A UNIT OF
USX CORPORATION, ET AL.,

Plaintiffs, BEFORE: Pogue, Judge
v. Court No. 99-08-00523
UNITED STATES,

Defendant.

[Agency determination on remand affirmed.]

Decided: August 29, 2001

Dewey Ballantine LLP (Michael H. Stein, Bradford L. Ward, Navin
Joneja) for Plaintiffs.

Stuart E. Schiffer, Acting Assistant Attorney General, David M.
Cohen, Director, Lucius B. Lau, Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice; Peter G.
Kirchgraber, Attorney, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, Of Counsel, for
Defendant.

OPINION

Pogue, Judge: On November 21, 2000, this Court issued U.S. Steel

Group v. United States, 24 CIT __, 123 F. Supp. 2d 1365 (2000)

(“U.S. Steel I”). That opinion ordered the Department of Commerce

(“Commerce” or “the Department”) to reconsider on remand its

determination that a suspension agreement entered into with the

Ministry of Trade of the Russian Federation (“the Agreement”) was
Court No. 99-08-00523 Page 2

in the public interest and prevented price suppression or

undercutting, as required by the statute. See 19 U.S.C. §

1673c(l)(1) (1994). Familiarity with that opinion is presumed.

The Court now reviews Commerce’s Final Redetermination

Pursuant to Court Remand (“Redetermination”). Jurisdiction lies

under 28 U.S.C. § 1581(c).

Standard of Review

Commerce’s Redetermination must be sustained unless it is

“unsupported by substantial evidence on the record, or otherwise

not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

Substantial evidence is “something less than the weight of the

evidence.” Consolo v. Federal Maritime Com., 383 U.S. 607, 620

(1966). Nonetheless, Commerce must present “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938) (quoted in Gold Star Co. v. United States, 12 CIT 707, 709,

692 F. Supp. 1382, 1383-84 (1988), aff’d sub nom. Samsung

Electronics Co. v. United States, 873 F.2d 1427 (Fed. Cir. 1989)).

The possibility of drawing two inconsistent conclusions from the

same evidence does not mean that the agency’s finding is

unsupported by substantial evidence. See Consolo, 383 U.S. at 620.

In other words, Commerce’s determination will not be overturned

merely because the plaintiff “is able to produce evidence . . . in
Court No. 99-08-00523 Page 3

support of its own contentions and in opposition to the evidence

supporting the agency’s determination.” Torrington Co. v. United

States, 14 CIT 507, 514, 745 F. Supp. 718, 723 (1990)(internal

quotation omitted), aff’d, 938 F.2d 1276 (Fed. Cir. 1991).

Commerce’s conclusions must in any event be “reached by

‘reasoned decisionmaking,’ including an examination of the relevant

data and a reasoned explanation supported by a stated connection

between the facts found and the choice made.” Electricity

Consumers Resource Council v. Federal Energy Regulatory Com., 747

F.2d 1511, 1513 (D.C. Cir. 1984)(citing Burlington Truck Lines,

Inc. v. United States, 371 U.S. 156, 168 (1962)).

Discussion

I. Commerce’s “Public Interest” Determination

Under the first prong of the statute, 19 U.S.C. §

1673c(l)(1)(A), Commerce may enter into a suspension agreement only

if it is “satisfied that suspension of the investigation is in the

public interest.” 19 U.S.C. § 1673c(d)(1). In evaluating

Commerce’s determination that the Agreement is in the public

interest, the Court first decides whether Commerce’s interpretation

of the statute is in accordance with law.

In the Redetermination, Commerce reads the statute to confer

to it broad discretion in making a subsection (l) public interest

determination. In support of this position, Commerce points to the
Court No. 99-08-00523 Page 4

lack of a definition of the “public interest” in both the statute

and the legislative history, as well as the use of the word

“satisfied,” which it suggests connotes a highly subjective state

of mind. See Redetermination at 14 & n.23.

U.S. Steel does not deny that Commerce has broad discretion in

making a public interest determination, but asserts that,

in analyzing the effects and benefits on the U.S.
industry, the Department must take into account the
alternatives available to the domestic industry in the
absence of a suspension agreement. That is, the benefits
to the U.S. industry should be evaluated relative to the
effects of an antidumping duty investigation (and order)
rather than by comparing the effects of the Suspension
Agreement to no relief at all.

Pl.’s Comments at 16. Further, U.S. Steel argues that Commerce is

required by the statute to explain how “other” factors it

considered in making its public interest determination “outweigh

the very real, direct and vital interests of the domestic steel

industry.” Id. at 18.

Commerce’s broad understanding of “the public interest”

accords with the clear intent of Congress. See Chevron U.S.A. Inc.

v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984).

The language of section 1673c(d)(1), “in the public interest,” does

not include any further limiting language, such as that of section

1673c(a)(2)(B), which requires Commerce to take three specific

public interest factors into account.1 See 19 U.S.C. §

1
Commerce considered, but was not controlled by, the factors
articulated in subsection (a)(2)(B), using them as a “useful
Court No. 99-08-00523 Page 5

1673c(a)(2)(B). Thus, the plain language of the statute indicates

that Congress intended Commerce to have broad discretion in making

its public interest determination, and this Court will not impose

limits on Commerce’s discretion that were not imposed by Congress.

See Whitman v. Am. Trucking Ass’ns, 121 S.Ct. 903, 913 (2001)

(finding an "intelligible principle" in various statutes

authorizing regulation in the "public interest") (citing National

Broadcasting Co. v. United States, 319 U.S. 190, 225-226 (1943);

New York Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25

(1932)).

Moreover, the Court finds no support in the legislative

history for Plaintiff’s argument that Commerce’s discretion is

limited by the interest of the domestic industry. Congress did

state its intent that “investigations be suspended only when that

action serves the interest of the public and the domestic industry

affected,” which could suggest that one of the factors Commerce

must consider is the interest of the domestic industry.2 See S.

Rep. No. 96-249, at 71 (1979), reprinted in 1979 U.S.C.C.A.N. 381,

457. And a different part of the statute directs Commerce to

suspend an investigation only if suspension is “more beneficial to

conceptual framework that the Department has used to inform its
analysis . . . .” Redetermination at 14.
2
It is clear in this case that Commerce did take the interest
of the domestic industry into account. See Redetermination at 15-
17.
Court No. 99-08-00523 Page 6

the domestic industry” than the continuation of investigation. See

19 U.S.C. § 1673c(c)(2)(A)(i); see also S. Rep. No. 96-249, at 68

(1979), reprinted in 1979 U.S.C.C.A.N. at 454. Congress did not,

however, apply this language to agreements with nonmarket economies

under subsection (l). Thus, while the legislative history may

indicate that a suspension agreement must benefit the domestic

industry to be in the public interest, there is nothing to suggest

that a suspension agreement must be more beneficial than an order,

or that “other” factors must outweigh the interest of the domestic

industry, in order for the agreement to be legal under the statute.

The Court next reviews whether Commerce’s public interest

determination is supported by substantial evidence, and whether

Commerce adequately explained its conclusion that the Agreement is

in the public interest. In the Redetermination, Commerce considers

three public interest factors: U.S. producer and worker interests,

consumer benefits of the suspension agreement, and the

international economic interest of the United States. See

Redetermination at 15-19.

U.S. Steel does not contest that the Agreement serves the

interests of consumers and the international economic interest of

the United States, but objects to Commerce’s finding that the

Agreement serves U.S. producer interests. U.S. Steel asserts that

“where, as here, antidumping duty margins are so high as to be

prohibitive, the certainty of no imports at all provided by an
Court No. 99-08-00523 Page 7

order is plainly preferable” to the Agreement, which allows in

certain quantities of Russian steel. Pl.’s Comments at 17. U.S.

Steel also argues that Commerce cannot claim a “market certainty”

benefit, because the adjustment procedures that are part of the

Agreement make it just as uncertain as an order subject to

administrative review.3 See id.

While the domestic producers may prefer an antidumping order,

as discussed above, Commerce is not required under the statute to

provide substantial evidence that the Agreement serves the domestic

producers’ interest more than an order would; Commerce is rather

required to provide substantial evidence that the Agreement is in

the public interest. Similarly, it is not incumbent upon Commerce

to provide substantial evidence that the Agreement is more stable

and certain than an order (though Commerce makes this claim);

rather, Commerce is required to provide substantial evidence that

the Agreement achieves stability and certainty, and explain how

stability and certainty serve the public interest.

Under this standard, Commerce’s Redetermination withstands

scrutiny. First, Commerce points to the price and quantity limits

3
U.S. Steel raised a similar objection to the draft of the
Redetermination. Commerce responds in the Redetermination that the
price and volume limits contained in the Agreement make the
Agreement “inherently more stable and predictable than conditions
under an order,” noting that an order does not contain volume
limits and that the amount of duties actually imposed could change
significantly through the administrative review process. See
Redetermination at 31 & n.33.
Court No. 99-08-00523 Page 8

contained in the Agreement, which inherently introduce stability

and certainty into the market. See Redetermination at 15-16.

Stability and certainty benefit the domestic industry by allowing

it “to invest and plan for future growth.” Id. at 16. While, as

U.S. Steel points out, the price limits are subject to adjustment,

Commerce explains that the reference price mechanism in the

Agreement creates certainty because it adjusts Russian steel prices

to account for changes in the market, so that the price floor is

maintained in “real” terms. See id. at 11-12.

Further, Commerce explains that market certainty and stability

created by the Agreement benefit consumers by allowing them to

continue to purchase hot-rolled steel – the largest merchant steel

product – from Russia, albeit in limited quantities and above a

price floor. See id. at 18-19. Commerce also explains that the

price and volume limits of the Agreement serve the international

economic interest of the United States in economic stability and a

transition to a market economy in Russia, by allowing Russia to

continue to export hot-rolled steel, subject to the limits of the

Agreement. Id. at 19.

Commerce relies as well on other features of the Agreement

that serve the public interest. For example, the Agreement

contains anti-circumvention provisions that promote the integrity

and transparency of the Agreement. See Redetermination at 16.

Additionally, the Agreement is linked to a comprehensive agreement
Court No. 99-08-00523 Page 9

covering a broad array of steel products exported from Russia to

the United States, such that if Russia withdraws from the

comprehensive agreement, Commerce will terminate the suspension

agreement. See id. at 16-17. This provision protects integrated

steel producers who produce hot-rolled steel as well as other steel

products covered by the comprehensive agreement. See id. Lastly,

the Agreement benefits domestic producers by limiting Russian

market share to a level prevailing before imports of Russian steel

were harming the domestic industry. See id. at 17.

As Commerce observes, the benefits of the Agreement “are

different from those that would accrue to the domestic industry

under an antidumping order”; this does not mean, however, that the

Agreement is not in the public interest. Id. at 31. Commerce

points to specific features of the Agreement and then explains how

these features serve the public interest, taking into account the

interests of the domestic industry and domestic consumers, and the

international economic interests of the United States.

Accordingly, Commerce’s determination that the Agreement is in the

public interest is supported by substantial evidence and otherwise

in accordance with law.
Court No. 99-08-00523 Page 10

II. Commerce’s Determination that the Agreement will Prevent Price
Suppression or Undercutting

Under the second prong of the statute, Commerce must determine

that a suspension agreement “will prevent the suppression or

undercutting of price levels of domestic products by imports of the

merchandise under investigation.” 19 U.S.C. § 1673c(l)(1)(B). As

above, in evaluating Commerce’s determination that the Agreement

prevents price suppression or undercutting, the Court first decides

whether Commerce’s interpretation of the statute is in accordance

with law.

In U.S. Steel I, the Court held that the language of the

statute is ambiguous. See 24 CIT at __, 123 F. Supp. 2d at 1371.

The next question, then, is whether or not Chevron deference should

be given to the agency’s interpretation of the statute. See United

States v. Mead Corp., 121 S. Ct. 2164, 2171-73 (2001). An agency’s

interpretation of a statute,

qualifies for Chevron deference when it appears that
Congress delegated authority to the agency generally to
make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the
exercise of that authority. Delegation of such authority
may be shown in a variety of ways, as by an agency’s
power to engage in adjudication or notice-and-comment
rulemaking, or by some other indication of a comparable
congressional intent.

Mead, 121 S. Ct. at 2171.

In concluding that Commerce’s interpretation of the statute

governing suspension agreements qualifies for Chevron deference,
Court No. 99-08-00523 Page 11

the Court notes first that Congress appears to have delegated

primary authority to Commerce to interpret the antidumping laws

generally. See id. at 2172 (“[I]t can [] be apparent from the

agency’s generally conferred authority . . . that Congress would

expect the agency to be able to speak with the force of law when it

addresses ambiguity in the statute . . . .”). Congress stated

that, in enacting title 19 with its limited standard of review, it

“by law entrusted the decision-making authority in a specialized,

complex economic situation to [Commerce].” See S. Rep. No. 96-

249, at 251-52, reprinted in 1979 U.S.C.C.A.N. at 638; compare

Mead, 121 S. Ct. at 2174 (pointing to this court’s power of de novo

review of Customs classification rulings as evidence that Chevron

deference not warranted). Furthermore, our appellate court has

repeatedly stressed its view that Congress vested Commerce, and not

the court, with primary authority to interpret the antidumping

laws. See, e.g., Koyo Seiko Co. v. United States, slip op. 00-

1500, at 10 (Fed. Cir. July 20, 2001) (“In antidumping cases, this

court has repeatedly recognized ‘Commerce’s special expertise,’ and

it has ‘accord[ed] substantial deference to its construction of

pertinent statutes.’”) (quoting Micron Tech v. United States, 117

F.3d 1386, 1394 (Fed. Cir. 1997); Daewoo Elecs. Co. v.

International Union of Elec., Tech., Salaried & Mech. Workers, 6

F.3d 1511, 1516 (Fed. Cir. 1993) (referring to Commerce as the

“‘master’ of antidumping law, [and] worthy of considerable
Court No. 99-08-00523 Page 12

deference” in questions of statutory interpretation) (internal

citations omitted); see also, American Silicon Technologies, et al.

v. United States, slip op. 00-1400, at 10 (Fed. Cir. Aug. 16,

2001).

Though it appears that Congress has made a general delegation

of authority to Commerce to interpret the statute, Mead makes clear

that, where notice-and-comment or formal adjudication procedures

are not used, a court should also consider whether Congress

“provides for a relatively formal administrative procedure tending

to foster the fairness and deliberation that should underlie a

pronouncement [with the effect of law].” Mead, 121 S. Ct. at 2172.

Because the agencies this court reviews so often interpret the

antidumping and countervailing duty statutes in less formal formats

than those provided for in the Administrative Procedure Act, we

make clear that, our conclusion in this case notwithstanding, less

deference may be owed by the Court of International Trade to agency

interpretations in other contexts.

The provisions governing subsection (l) suspension agreement

determinations do not reach the level of formality of the

provisions of the Administrative Procedure Act for formal

adjudications and notice-and-comment rulemaking.4 Nonetheless,

this case presents “circumstances reasonably suggesting that

4
It should be noted that Commerce did give the domestic
producers the opportunity to comment on both the Agreement and the
Redetermination. See Redetermination at 2, 3.
Court No. 99-08-00523 Page 13

Congress . . . thought of [interpretations contained in suspension

agreement determinations] as deserving the deference claimed for

them here.” Id. at 2173. In particular, Congress gave Commerce

explicit power to suspend an investigation upon acceptance of a

suspension agreement with a nonmarket economy in accordance with

subsection 1673c(l). Subsection 1673c(l) requires Commerce to

publish a determination that satisfies specific statutory criteria

in order to enter into a suspension agreement. Subsection (d), to

which subsection (l) refers, further requires Commerce, if it

decides not to accept a proposed agreement and thus does not issue

a determination, to, “[w]here practicable . . . provide to the

exporters who would have been subject to the agreement the reasons

for not accepting the agreement and, to the extent possible, an

opportunity to submit comments thereon.” 19 U.S.C. § 1673c(d).

Commerce’s suspension agreement determinations are “relatively

formal” and “foster [] fairness and deliberation,” insofar as the

statute requires Commerce to explain in writing and with reference

to specific criteria its reasons for entering into an agreement.

Cf. Mead, 121 S. Ct. at 2174-75 (describing the informalities of

administrative procedure related to issuance of Customs

classification rulings such that these rulings are “best treated

like ‘interpretations contained in policy statements, agency

manuals, and enforcement guidelines[,]” and thus “beyond the

Chevron pale”) (quoting Christensen v. Harris County, 529 U.S. 576,
Court No. 99-08-00523 Page 14

587 (2000)). It therefore appears to this Court that Chevron

deference is warranted in this instance, and, accordingly, the

Court reviews Commerce’s interpretation of the statute for

reasonableness. See Chevron, 467 U.S. at 844.

In the Redetermination, Commerce interprets the language of

1673c(l)(1)(B) to mean that, “a subsection (l) agreement that

prevents significant price suppression or undercutting satisfies

the statutory requirement that such an agreement prevent price

suppression or undercutting, and provides effective relief to the

domestic industry.” Redetermination at 7 (emphasis added). U.S.

Steel argues that this interpretation is not in accordance with law

because it gives Commerce unbounded discretion, “as the Department

can find practically any amount of price suppression to be

insignificant.” Pl.’s Comments at 7. According to U.S. Steel,

Commerce must explain how much price suppression is “significant”

in order to comply with this Court’s order on remand. Id. at 8.

In U.S. Steel I, the Court found that the word “prevent” is

subject to two possible interpretations. Under one interpretation,

tied to the “preclude” definition of “prevent,” an agreement would

have to prevent all price suppression. 24 CIT at __, 123 F. Supp.

2d at 1371. Under the second interpretation, tied to the slightly

more flexible “impede” or “avert” definition of “prevent,” an

agreement would have to effectively counteract – without

necessarily eliminating – price suppression. Id.
Court No. 99-08-00523 Page 15

The Court finds that Commerce’s interpretation of the statute

is reasonable because it is in accord with the interpretation tied

to the latter definition of “prevent,” and because, contrary to

U.S. Steel’s suggestions, this interpretation creates a reviewable

standard. How much price suppression is “significant” may be

determined on a case-by-case basis. See SEC v. Chenery Corp., 332

U.S. 194, 203 (1947); see also Fabrique De Fer De Charleroi S.A. v.

United States, slip op. 01-82, at 21 (CIT July 3, 2001) (holding

that Commerce may “reach[] a determination after examining the

particular circumstances of the case without formally promulgating

an all-inclusive standard”). And any conclusion that an agreement

prevents “significant” price suppression must be supported by

substantial evidence and explained in a reasoned way.5

The Court now considers whether Commerce’s conclusion that the

Agreement prevents “significant” price suppression and thus

provides effective relief to the domestic industry is supported by

substantial evidence and explained in a reasoned way, and finds

that it is. On remand, Commerce explains that price suppression in

the domestic industry was caused by both the large volume and low

price of imports of Russian hot-rolled steel; consequently, in

5
Because Commerce’s interpretation of the statute is
reasonable for the reasons given above, the Court declines to
address the merits of the parties’ arguments addressed to whether
it is acceptable to “import” the “significant degree” language from
the statute governing the ITC’s injury determinations. See
Redetermination at 6-7; Pl.’s Comments at 7, 8-9.
Court No. 99-08-00523 Page 16

negotiating the Agreement, Commerce took both price and volume

factors into account. The Agreement provides for a moratorium,

during which no imports are permitted, followed by a period during

which the quantity and price of imports are restricted. See

Redetermination at 8, 11-12. By comparing the amount of price

undercutting that occurred during the ITC preliminary report period

(i.e., from October 1997 through September 1998), to the amount of

undercutting eliminated by the restrictions on price and volume for

the first year of the Agreement, Commerce demonstrates that the

amount of undercutting allowed by the Agreement following the

moratorium is less then fourteen percent of the undercutting which

occurred during the comparison period; in other words, eighty-six

percent of price undercutting is prevented.6 Id. at 9-10. This

“summary statistic,” explains Commerce, is evidence that the price

suppression prevented is substantial. See id. at 29.

In subsequent, “out” years, Commerce asserts that the volume

increases are “moderate,” such that the largest annual volume

allowed is less than thirty percent of the import volume for the

6
According to Commerce, the “eighty-six percent” figure is
conservative, because it attributes all of the price difference
between domestic and Russian hot-rolled steel to undercutting,
rather than other differences such as quality. See Redetermination
at 10-11 & n.21. Also, Commerce used the highest per-ton price for
domestic steel reported by the ITC; if Commerce had used one of the
lower prices reported in other sources for the same period, the
amount of undercutting for the comparison period would be less, and
thus the amount prevented by the Agreement would be more. See id.
at 10 n.19.
Court No. 99-08-00523 Page 17

comparison period.7 See id. at 11. Price limits in the “out”

years will be tied to a reference price established in the first

year of the Agreement, and adjusted based on prices of steel from

countries not subject to an order. See id. at 11-12. This

“reference price” mechanism will have the effect of maintaining

price restrictions in “real terms,” in relation to fairly priced

imports. See Redetermination at 12.

U.S. Steel does not appear to challenge Commerce’s conclusion

on substantial evidence grounds, but rather challenges the analysis

Commerce uses to arrive at its conclusion on several grounds. See

Pl.’s Comments at 9-16. First, U.S. Steel argues that price

undercutting is not a measure of price suppression, because if

domestic producers refrain from lowering their prices in response

to low-priced imports, domestic prices won’t be suppressed, but

domestic producers will cede market share. See id. at 10-12. In

order to effectively prevent price suppression, suggests U.S.

Steel, Commerce must analyze how domestic producers will respond in

the future to unfairly priced imports. See id. at 12-13. Second,

according to U.S. Steel, Commere’s approach is, contrary to the

7
Commerce also notes that import volumes surged in the fourth
quarter of 1998. See Redetermination at 11. The largest annual
volume of imports allowed under the Agreement would be less than
twenty percent of imports recorded for calendar year 1998. See id.
Furthermore, though there is no ITC undercutting data for the
fourth quarter of 1998, if the margin of underselling remained the
same as in the ITC data for the preliminary report period, then for
the calendar year 1998, ninety percent of price suppression was
prevented. See id.
Court No. 99-08-00523 Page 18

statute, “backward-looking.” See id. at 13 (emphasizing the “will

prevent” language of section 1673c(l)(1)(B)). Third, because

Commerce can’t predict the future, U.S. Steel claims that there is

no reasoned basis for the volume limits for the “out” years of the

Agreement.8 See id. at 14. Finally, U.S. Steel faults Commerce

for “concoct[ing] a post hoc rationalization for a particular

decision with no intention of making it generally applicable to

future cases.” Pl.’s Comments at 15.

While the Court appreciates U.S. Steel’s observation that

price undercutting and price suppression are not always directly

related, it does little to undercut the validity of Commerce’s

analysis in the case at hand. The statute requires Commerce to

prevent price suppression or price undercutting, so an agreement

that prevents significant price undercutting is acceptable,

especially where, as here, price undercutting caused price

suppression. See 19 U.S.C. § 1673c(l)(1)(B). Indeed, U.S. Steel

does not dispute that what caused price suppression in this case

was a high volume of extremely low-priced imports. See Pl.’s

Comments at 11. The Court agrees with Commerce that, here, price

8
U.S. Steel also asserts that Commerce has not explained how
it arrived at its allocation of price to volume limits, see Pl.’s
Comments at 13-14, but U.S. Steel failed to raise this argument at
the agency level. Because none of the recognized exceptions to the
doctrine of exhaustion is applicable here, see FAG Kugelfischer
Georg Schafer AG v. United States, 25 CIT __, __, 131 F. Supp. 2d
104, 113-114 (2001), U.S. Steel’s argument is not appropriately
before the court.
Court No. 99-08-00523 Page 19

undercutting is a suitable proxy for price suppression “because

price underselling is, in this case, the root cause of price

suppression. By materially eliminating the cause of price

suppression, the Department is preventing price suppression

itself.” Redetermination at 29.

U.S. Steel succeeds in demonstrating that Commerce’s analysis

may not always be appropriate, if applied generally across

different factual scenarios, but fails to demonstrate that

Commerce’s analysis is inappropriate in this specific instance.

Commerce explains in the Redetermination the connection between the

facts it found regarding the causes and amounts of price

suppression and the choices it made in the Agreement, namely, a

moratorium followed by significant restrictions on the price and

volume of Russian imports. In addition, “[t]he methodologies

relied upon by Commerce in making its determinations are

presumptively correct.” Thai Pineapple Pub. Co. v. United States,

187 F.3d 1362, 1365 (Fed. Cir. 1999) (citing Fujitsu Gen. v. United

States, 88 F.3d 1034, 1044 (Fed. Cir. 1996)), cert. denied, 529

U.S. 1097 (2000). While the use of econometric modeling or other

methods to determine how domestic producers will respond to a

certain amount of imports at a certain price may also be

appropriate, this Court cannot find that the method Commerce uses,

which analyzes historical data to determine how to effectively
Court No. 99-08-00523 Page 20

control the impact of future imports on domestic producers, is

inappropriate in this case.

The remainder of U.S. Steel’s arguments are also unpersuasive.

Commerce’s analysis is “backward-looking” only to the extent that

it relies on historical data to provide a basis for setting price

and volume limits at a level that will prevent significant price

suppression in the future. And, to the extent that Commerce fails

to predict the future accurately, there are adjustment mechanisms

built into the Agreement, as well as statutory provisions for

administrative review, see 19 U.S.C. § 1675(a)(1)(c), and for

termination of subsection (l) suspension agreements that fail to

prevent suppression or undercutting of domestic producer prices,

see 19 U.S.C. § 1673c(l)(2).

Lastly, in U.S. Steel I, the Court did not require Commerce on

remand to issue generally applicable regulations or guidelines in

support of the analysis used in the Agreement; rather, the Court

asked Commerce to demonstrate that it “exercised reasoned

discretion in arriving at the conclusion that the Agreement

prevents price suppression or undercutting.” 24 CIT at __, 123 F.

Supp. 2d at 1371. There is no post hoc rationalization problem

where the agency re-examines its conclusion on remand, and, though

arriving at the same conclusion, explains the conclusion in a

reasoned way as guided by the facts of the case and its reasonable

interpretation of the statute. See Mitsubishi Heavy Industries,
Court No. 99-08-00523 Page 21

Ltd. v. United States, 24 CIT __, __, 97 F. Supp. 2d 1203, 1209 n.9

(2000).

Conclusion

Commerce’s Redetermination is supported by substantial

evidence and is otherwise in accordance with the law, and is

therefore affirmed in all respects.

_________________________

Donald C. Pogue
Judge

Dated: August 29, 2001
New York, New York
 ERRATUM

Slip Op. 01-110, issued August 29, 2001

U.S. Steel Group, a Unit of USX Corporation, et al. v. United
States

The following party should be added to the caption and included
in the listing of law firms and attorneys:

JSC Severstal, Defendant-Intervenor

Powell, Goldstein, Frazer & Murphy LLP (Neil R. Ellis), for
Defendant-Intervenor

October 11, 2001