United States Steel Corp. v. United States

Slip Op. 12- 108

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: The Honorable Nicholas Tsoucalas, Senior Judge
_____________________________________
UNITED STATES STEEL CORPORATION, :
:
Plaintiff, :
:
and :
:
NUCOR CORPORATION and ARCELORMITTAL :
USA LLC, :
Plaintiff-Intervenors :
:
v. :Consol. Court No. 11-00228
:
UNITED STATES, :
:
Defendant, :
:
and :
:
COMPANHIA SIDERURGICA NACIONAL, JFE :
STEEL CORPORATION, KOBE STEEL, LTD., :
NIPPON STEEL CORPORATION, NISSHIN :
STEEL CO., LTD., and SUMITOMO METAL :
INDUSTRIES, LTD., :
:
Defendant-Intervenors.:
:
[The Plaintiffs’ Motions for Judgment on the Agency Record are
denied. The United States International Trade Commission’s
Determination is affirmed. The case is dismissed.]

Dated: August 14, 2012

Skadden, Arps, Slate, Meagher & Flom, LLP, (James C. Hecht,
Robert E. Lighthizer, Stephen P. Vaughn, and Stephen J. Narkin) for
Plaintiff, United States Steel Corporation.

Wiley Rein, LLP, (Tessa V. Capeloto, Alan H. Price, Timothy C.
Brightbill, and Maureen E. Thorson) for Plaintiff-Intervenor, Nucor
Corporation.

Kelley Drye and Warren, LLP, (Kathleen W. Cannon, Paul C.
Rosenthal, R. Alan Luberda, and Grace W. Kim) for Plaintiff-
Intervenor, ArcelorMittal USA LLC.
Court No. 11-00228 Page 2

James M. Lyons, General Counsel; Neal J. Reynolds, Assistant
General Counsel; Marc A. Bernstein, Office of the General Counsel,
U. S. International Trade Commission; Carrie A. Dunsmore, U.S.
Department of Justice, Commercial Litigation Branch, Civil
Division, for Defendant, United States.

Hogan Lovells US LLP, (Craig A. Lewis, Jonathan T. Stoel,and
Brian S. Janovitz), for Defendant-Intervenor Companhia Siderurgica
Nacional.

Gibson, Dunn & Crutcher, LLP, (J. Christopher Wood, Donald
Harrison, Andrea Fraser-Reid Farr, Daniel J. Plaine,and DeLisa L.
Lay) for Defendant-Intervenors JFE Steel Corporation, Kobe Steel,
Ltd., Nippon Steel Corporation, Nisshin Steel Co., Ltd., Sumitomo
Metal Industries.

OPINION

TSOUCALAS, Senior Judge: This matter comes before the Court upon

the Motions for Judgment on the Agency Record filed by United

States Steel Corporation (“U.S. Steel”), Nucor Corporation

(“Nucor”) and ArcelorMittal USA LLC (“AMUSA”) (collectively

“Plaintiffs”) pursuant to United States Court of International

Trade Rule 56.2. Plaintiffs challenge the final determination of

the United States International Trade Commission (“ITC”) revoking

antidumping and countervailing duty orders on hot-rolled flat-

rolled steel products from Japan and Brazil. See Hot-Rolled Flat-

Rolled Carbon-Quality Steel Products from Brazil, Japan, and

Russia, 76 Fed. Reg. 34101 (June 10, 2011). Plaintiffs argue that

the final sunset determination is not supported by substantial

evidence and otherwise not in accord with the law. Plaintiffs seek

a remand of this matter for further proceedings before the ITC.
Court No. 11-00228 Page 3

Defendant, United States, and Defendant-Intervenors, Companhia

Siderurgica Nacional, JFE Steel Corporation, Kobe Steel, Ltd.,

Nippon Steel Corporation, Nisshin Steel Co., Ltd. and Sumitomo

Metal Industries (collectively “Defendants”), argue that the ITC

conducted a proper analysis and that its determination was

supported by substantial evidence and in accord with the law. They

oppose remand of this matter.

Based on the record and oral arguments held on August 7, 2012,

and for the reasons set forth below, the Court finds that the ITC’s

final determination was supported by substantial evidence and in

accord with the law. This matter is dismissed.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28

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

STANDARD OF REVIEW

The Court is required to “hold unlawful any determination,

finding or conclusion found . . . to be unsupported by substantial

evidence, or otherwise not in accord with the law.” 19 U.S.C. §§

1516a(a)(2)(B)(iii), 1516a(b)(1)(B)(i). However, the decision of

the ITC is presumed to be correct and the burden of proving

otherwise rests on the party challenging the decision. 28 U.S.C.

§ 2639(a)(1).

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Court No. 11-00228 Page 4

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).

“Substantial evidence 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)

(internal citations and quotation marks omitted).

As long as there is an “adequate basis in support of the

Commission’s choice of evidentiary weight, the Court of

International Trade, and [the Federal Circuit], reviewing under the

substantial evidence standard, must defer to the Commission.”

Nippon Steel Corp. v. United States, 458 F.3d 1345, 1359 (Fed. Cir.

2006). The ITC has the “discretion to make reasonable

interpretations of the evidence and to determine the overall

significance of any particular factor in its analysis.” Goss

Graphics Sys., Inc. v. United States, 22 CIT 983, 1008, 33

F.Supp.2d 1082, 1104 (1998), aff’d 216 F.3d 1357 (Fed. Cir. 2000).

“Certain decisions, such as the weight to be assigned a particular

piece of evidence, lie at the core of [the] evaluative process.”

U.S. Steel Grp. v. United States, 96 F.3d 1352, 1357 (Fed. Cir.

1996). “[T]he possibility of drawing two different conclusions

does not prevent an administrative agency’s finding from being

supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n,

383 U.S. 607, 620 (1966). The Court may not “displace the [ITC’s]

choice between two fairly conflicting views, even though the court

would justifiably have made a different choice had the matter been
Court No. 11-00228 Page 5

before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951). Nor may the Court “reweigh the evidence or substitute

its own judgment for that of the agency.” Usinor v. United States,

28 CIT 1107, 1111, 342 F. Supp. 2d 1267, 1272 (2004).

The ITC “must address significant arguments and evidence which

seriously undermines its reasoning and conclusions.” Altx, Inc. v.

United States, 25 CIT 1100, 1117-18, 167 F. Supp.2d 1353, 1374

(2001). However, the ITC is not “required to explicitly address

every piece of evidence presented by the parties, and . . . is

presumed to have considered all of the evidence on the record.”

Nucor Corp. v. United States, 28 CIT 188, 234, 318 F. Supp. 2d

1207, 1247 (2004), aff’d 414 F.3d 1331 (Fed. Cir. 2005).

BACKGROUND

Under review are the ITC’s negative determinations in the

second sunset review of the antidumping and countervailing duty

orders on hot-rolled steel imports from Japan and Brazil. Hot-

Rolled Flat-Rolled Carbon-Quality Steel Products from Brazil,

Japan, and Russia, 76 Fed. Reg. 34101 (June 10, 2011).

This matter arose out of the Department of Commerce’s

(“Commerce”) various suspension agreements, antidumping orders, and

countervailing duty orders on hot-rolled steel from Brazil, Japan,

and Russia. Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel

Products from Japan, 64 Fed. Reg. 34778 (June 29, 1999); Suspension

of Antidumping Duty Investigation: Hot-Rolled Flat-Rolled Carbon-
Court No. 11-00228 Page 6

Quality Steel Products from Brazil, 64 Fed. Reg. 38792 (July 19,

1999); Suspension of Antidumping Duty Investigation: Hot-Rolled

Flat-Rolled Carbon-Quality Steel Products from the Russian

Federation, 64 Fed. Reg. 38642 (July 19, 1999); Certain Hot-Rolled

Steel Products from Brazil and Russia, Inv. Nos. 731-TA-384, 731-

TA-806, 808, USITC Pub. 3223 (Aug. 1999).

In 2005, the ITC completed its first five-year administrative

review, sunset review, of the orders and agreements relating to

imports of hot-rolled steel from Brazil, Japan, and Russia. The

ITC issued affirmative determinations for subject imports from all

three countries. Certain Hot-Rolled Steel Products from Brazil,

Japan, and Russia, Inv. Nos. 731-TA-384, 731-TA-806-808, USITC Pub.

3767 (Apr. 2005).

The ITC instituted its second sunset review on April 1, 2010.

Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Brazil,

Japan, and Russia, 75 Fed. Reg. 16504 (Int’l Trade Comm’n) (Apr. 1,

2010). The ITC reached an affirmative determination regarding

subject imports from Russia, but reached negative determinations

with respect to subject imports from Japan and Brazil and revoked

the antidumping and countervailing duty orders previously imposed

on hot-rolled steel from those countries. Hot-Rolled Flat-Rolled

Carbon-Quality Steel Products from Brazil, Japan, and Russia, 76

Fed. Reg. 34101 (Int’l Trade Comm’n) (June 10, 2011).

In its findings, the ITC concluded that imports from Japan,
Court No. 11-00228 Page 7

Brazil, and Russia were “not likely to have no discernible adverse

impact” on the domestic industry in the event of revocation. Hot-

Rolled Flat-Rolled Carbon-Quality Steel Products from Brazil,

Japan, and Russia, USITC Pub. 4237, Inv. Nos. 701-TA-384 and 731-

TA-806-808 (June 2011) at 12-13 (“Pub. Views”). The ITC further

found there to be a likely reasonable overlap of competition

between all subject sources and between those imports and domestic

like products. Id. at 14-15. The ITC exercised its discretion and

chose not to analyze subject imports cumulatively because it deemed

imports from each subject country likely to compete under different

conditions in the United States market upon revocation. Id. at 18.

The ITC distinguished the Brazilian industry as “significantly less

export oriented” and noted that imports from Brazil “historically

have had a much smaller and more stable presence in the United

States market than imports from the other two subject countries.”

Id. at 16-17. Japanese imports displayed different pricing

patterns and a much heavier focus on the Asian market than imports

from Brazil or Russia. Id. at 17-18.

With respect to Japan, the ITC determined that the revocation

of the antidumping order would not result in any significant

increase in the volume of its imports to the United States. Id. at

44. The ITC cited the Japanese industry’s consistent and

overwhelming focus on Asian markets, which are larger than the

United States market and projected by the ITC to grow more quickly.
Court No. 11-00228 Page 8

Id. at 41. The ITC also emphasized Japan’s long-term relationships

with these Asian customers. Id. at 41-42. It noted that increases

in exports from Japan to non-Asian markets during the period of

review had been gradual. Id. at 42. The only export surge, during

the time of the original injury determination, was attributed to a

financial crisis that devastated demand in East Asia and remains

unlikely to recur. Id. Additionally, although United States

prices have typically exceeded those in other markets, the ITC

determined that the price differences were neither sufficiently,

nor consistently, large enough to provide a strong incentive for

Japanese producers to divert significant quantities of exports to

the United States from Asian markets. Id. at 43. Due to the

insignificant likely volume increases, as well as the lack of any

history of pervasive underselling, the ITC dismissed the likelihood

of any adverse price effects or adverse impact on the domestic

industry resulting from the revocation of the antidumping order on

Japanese imports. Id. at 44-45.

The ITC also determined that, upon revocation of the orders

from Brazil, the subject imports were likely to be modest because

of Brazil’s strong home market orientation and the related economic

incentives of directing shipments to their home market rather than

to the United States. Id. at 38. They also noted a “lack of any

history of import surges either to any market during the period of

review or to the United States at any time since 1996.” Id. The
Court No. 11-00228 Page 9

ITC dismissed the likelihood that revocation of the order on Brazil

would result in “significant price-depressing and -suppressing

effects,” or have any significant adverse impact on the condition

of the domestic industry. Id. at 39-40. The ITC also relied on

its determination that the domestic industry was not vulnerable

despite its recent lackluster financial performance, because demand

was expected to recover as business cycle conditions improved. Id.

at 35.

On July 6, 2011, U.S. Steel commenced this action by filing a

summons with the Court. Their complaint, filed on August 4, 2011,

alleges that the ITC’s negative determinations regarding imports of

hot-rolled steel from Japan and Brazil were unsupported by

substantial evidence and otherwise not in accord with the law. See

Compl. at 8-11. On September 26, 2011, the Court consolidated the

case initiated by U.S. Steel with those initiated by AMUSA and

Nucor.

DISCUSSION

Statutory Framework

The ITC must review antidumping and countervailing duty orders

every five years. 19 U.S.C. § 1675(c)(1). During a sunset review,

the ITC “shall determine whether revocation of an order . . . is

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
Court No. 11-00228 Page 10

the subject merchandise on the industry if the order is revoked.”

19 U.S.C. § 1675a(a)(1).

1. Cumulation

A. Parties’ Arguments

Nucor challenges the ITC’s decision not to exercise its

discretion to cumulatively analyze the effect of subject imports on

the domestic industry. Mem. in Support of Nucor’s Rule 56.2 Mot.

for J. on the Agency R. at 7 (“Nucor Mem.”). Nucor notes that the

ITC determined that Japan’s focus on Asian markets and Brazil’s

focus on its home market constituted different conditions of

competition between the producers. Nucor Mem. at 12. Nucor

characterizes their respective orientations as sales to “non-U.S.

markets,” a similarity which they allege favors cumulation. Nucor

Mem. at 13. Nucor also argues that the imports from each country

should be analyzed cumulatively because the ITC found that they are

unlikely to have no discernible impact. Nucor Mem. at 16.

Defendants support the ITC’s decision not to undertake a

cumulative analysis. They maintain that reliance on differences in

conditions of competition among importers from various countries is

a valid justification for the exercise of the ITC’s discretion in

choosing not to cumulate under 19 U.S.C. § 1675a(a)(7). See Def.’s

Mem. in Opp’n. to Mot. of Pls. for J. on the Agency R. at 12-13

(“Def.’s Mem.”); Resp. of Japanese Producers in Opp’n to Pls.’

Mots. for J. on the Agency R. at 7 (“Japanese Def.’s Resp.”); Resp.
Court No. 11-00228 Page 11

of Companhia Siderurgica Nacional in Opp’n to Pls.’ Mots. for J. on

the Agency R. at 19-20 (“CSN Def.’s Resp.”).

Defendants add that Nucor incorrectly collapses two conditions

of competition into one. Japanese Def.’s Resp. at 8.

Specifically, they argue that Nucor conflates export orientation

and a heavy focus on Asian markets into a focus on non-United

States markets, whereas the ITC considered these factors

separately. See Japanese Def.’s Resp. at 8-9; CSN Def.’s Resp. at

15.

B. Cumulation Analysis

When assessing imports from several countries to determine if

material injury exists, the ITC has the statutory discretion to

cumulate the volume and effect of such imports. 19 U.S.C. §

1675a(a)(7). However, “even if the subject imports meet the

statutory elements of cumulation, the ITC has discretion not to

cumulate them in a sunset review.” See Nucor Corp. v. United

States, 601 F.3d 1291, 1293 (Fed. Cir. 2010). Pursuant to

statutory authority, the ITC has wide latitude in selecting the

types of factors it considers relevant in undertaking its

cumulation analysis, and in each sunset review the ITC retains its

discretion not to cumulate its analysis. See 19 U.S.C. §

1675a(a)(7).

The ITC may exercise its discretion not to cumulate imports

where it finds imports likely to operate under differing conditions
Court No. 11-00228 Page 12

of competition. See Nucor Corp. v. United States, 601 F.3d 1291,

1296 (Fed. Cir. 2010). Nucor categorizes Brazil’s home-market

focus and Japan’s Asian market focus as “sales to non-U.S. markets”

in an attempt to convert what the ITC deemed a distinguishing

condition of competition into a similarity which, they argue,

strongly favors cumulation.

However, the ITC thoroughly examined and identified potential

differences in conditions of competition relating to export

orientation, historic volume trends, export market focus, and

historic pricing patterns. Pub. Views at 16-18. Nucor’s

interpretation of each country’s non-U.S. export focus does not, on

its own, require cumulation. The Court may not “displace the

[ITC’s] choice between two fairly conflicting views, even though

the court would justifiably have made a different choice had the

matter been before it de novo.” Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951). Therefore, the ITC’s discretion not to

cumulate is supported by substantial evidence and in accord with

the law.

2. Likely Volume of Subject Imports from Japan and Brazil

A. Parties’ Arguments

Plaintiffs allege that the ITC’s determination that Japan

would maintain its focus on home and Asian markets and would not

export to the United States in significant quantities is

unsupported by substantial evidence. Mot. of Pl. United States
Court No. 11-00228 Page 13

Steel Corp. for J. on the Agency R., 10-11 (“U.S. Steel Mot.”).

They allege that Japanese producers have the ability, substantial

export orientation (due to a weak home market), and excess capacity

to significantly increase exports to the United States Id. at 10.

Plaintiffs further claim that the ITC has presented insufficient

evidence that the Asian market will be able to absorb Japan’s

excess capacity and note that Asian production is exceeding

consumption. Id. at 10, 20. Plaintiffs also contest the ITC’s

determination that Japanese producers will maintain their focus on

Asian markets after revocation because of their long-term

relationships with Asian customers. Id. at 13-15.

Additionally, U.S. Steel argues that the ITC’s findings were

predicated on erroneous projections that steel consumption in Asia

would continue to grow. Id. at 20-21. Japanese producers’ export

history to Latin America, they allege, indicated a high likelihood

that these producers would shift exports to the more attractive

United States market upon revocation. Id. at 24. AMUSA adds that

the Japanese industry’s moderate growth in non-Asian markets is not

evidence that imports to the United States will be moderate, since

the United States market is more comparable to a region like Asia

and has historically higher prices than Latin America.

ArcelorMittal USA’s Mem. of Law in Support of Mot. for J. on the

Agency R., 20-21, (“AMUSA Mem.”). Nucor adds that Japanese
Court No. 11-00228 Page 14

producers were targeting new export markets outside of Asia not

gradually but suddenly and aggressively. Nucor Mem. at 31.

With respect to Brazil, Nucor argues that revocation will

result in dumping because Brazilian production capacity was

imminently projected to increase beyond demand growth and Brazilian

producers consistently undersold a portion of their production

during the period of review. Id. at 33.

Defendants characterize Plaintiffs’ challenges as mere

attempts to relitigate contested factual issues that have already

been appropriately decided by the ITC. Defendants allege that the

ITC provided substantial evidence to support its projection that

Japanese producers remain likely to focus predominantly on Asian

export markets because the ITC specifically referenced that Asian

consumption has exceeded that of North America and is also

projected to grow rapidly. Def.’s Mem at 18. Defendants also note

that the ITC justifiably relied on Japan’s significant long-term

commercial relationships within Asia because the ITC is “not

required to find the existence of ‘binding contracts’ as a

predicate to determining that the agreements and relationships in

question would continue to be the strategic focus.” Japanese

Def.’s Resp. at 15. Moreover, they argue that these relationships

are “significant investments,” “pervasive and central” to the

Japanese industry, and the ITC’s judgment regarding the weight

given to them as evidence of market focus should not be
Court No. 11-00228 Page 15

second-guessed by the Court. Japanese Def.’s Resp. at 15-17.

Lastly, Defendants note that Asian demand is stronger today than it

was in 1998, which increases the likelihood of Japan’s continued

focus on exports to Asia. Def.’s Mem. at 19.

Defendants do not believe that Japan’s excess capacity will

result in increased exports to the United States upon revocation.

See Japanese Def.’s Resp. at 22. They argue that Plaintiffs have

erroneously assumed that Japanese producers will prioritize full

capacity utilization regardless of market conditions, and that the

mere existence of unused capacity is equivalent to an increased

likelihood that such excess will be used to increase shipments to

the United States. Id. at 23-24. Defendants note that the ITC

never found that Asia would absorb all Japanese capacity nor that

Japan would likely operate at full capacity. Def.’s Mem. at 20.

Historically, increases in Asian production and excess capacity

have not displaced Japanese exports from Asian markets, even when

those markets have continued to grow. Japanese Def.’s Resp. at 26.

Defendants further allege that Plaintiffs fail to show a

significant and consistent history of price discrepancies favoring

the United States market. See id. at 27-28. While conceding that

United States prices have at times been higher than those of

Japan’s or other Asian markets, defendants argue that prices have

not been higher with enough consistency to increase the likelihood

that Japanese producers would shift their export focus to a
Court No. 11-00228 Page 16

significant extent. Def.’s Mem. at 28-29. Since Japanese

producers have not demonstrated a pattern of sudden export

shifting, the price differential between American and Japanese

markets would have to be considerably greater than the differential

recorded during the period of review in order to incentivize a

significant export shift to the United States. Id. As such,

defendants argue the relative attractiveness of United States

prices would not necessarily result in significant increases of

subject imports from Japan. Id.

Defendants also address Plaintiffs’ analogies to Latin

American markets in order to discredit Plaintiffs’ increased volume

projections. Def.’s Mem. at 19; Japanese Def.’s Resp. at 29.

Defendants emphasize the reasonableness of the ITC’s finding that

Japanese producers have exhibited no recent propensity to move

significant import volumes from less attractive to more attractive

export markets. Def.’s Mem. at 19; Japanese Def.’s Resp. at 29.

Defendants also note that the ITC found that not all markets in

Latin America were less attractive than the United States market.

Def.’s Mem. at 27. Additionally, Defendants support the ITC’s

dismissal of these comparisons on the grounds that Plaintiffs cite

to an undefined and vast region described as “Latin America” and

give no evidence of that region’s common conditions of competition.

Id. at 26-27. Defendants support the ITC’s statutory discretion to
Court No. 11-00228 Page 17

use evidence of historical export shifting trends rather than

Plaintiffs’ data relating to absolute volumes. Id. at 29.

With respect to Brazil, Defendants dispute Nucor’s demand

projections in that they neglect to account for the temporarily

diminished capacity of up-start steel mills opening in Brazil.

Def.’s Mem. at 39; CSN Def.’s Resp. at 35. Defendants also support

the ITC’s reliance on factors weighing against increased volume

projections, including Brazil’s home market orientation, strong

local demand, and historically stable export behavior. Def.’s Mem.

at 37-38; CSN Def.’s Resp. at 35-37.

B. Volume Analysis

The ITC provided substantial evidence in support of its

findings, with respect to global projections for production and

consumption, as well as each country’s export orientation, pricing

trends, and market focus. See Pub. Views at 36-38, 40-43. The ITC

emphasized Japan’s overwhelming export focus on the Asian market,

which is already the world’s largest market and is experiencing

robust and continuing growth. Id. at 41. In addition to its

emphasis on that market’s “size, projected dynamic growth, and

proximity to Japan”, the ITC analyzed Japanese producers’ long-term

relationships in the region, growth in exports to the region during

the period of review, lack of sudden export shifting or product

shifting, as well as significant changes in conditions of

competition that transpired during the period of review. Pub.
Court No. 11-00228 Page 18

Views at 41-42. Most notably, Asian demand has increased

significantly since the financial crisis that occurred during the

time of the original injury determination. Id. at 42. Although

Asian production has increased in kind, there has been no history

of displacement of Japanese imports to such markets. Id. at 42

n.263. Additionally, the ITC reviewed world market prices and

determined that prices in the United States were not consistently

higher and provided insufficient motivation for Japan to shift its

export orientation. Id. at 43.

Regarding the likelihood of import volume increases from

Brazil, the ITC first noted that Brazilian producers directed at

least 87.9% of shipments to the home market during each year of the

period of review. Id. at 37. In 2010, the last year of the period

of review, the home market absorbed 92.7% of the industry’s

capacity. Id. The ITC next noted that steel prices were

consistently and often substantially higher in Brazil than in North

America, and that steel consumption is projected to increase in

Brazil. Id. The ITC also analyzed Brazil’s inventories, history

of shipments to different export markets, and potential product

shifting, and found the industry unlikely to increase a significant

volume of subject imports to the United States upon revocation. Id.

at 37-38.
Court No. 11-00228 Page 19

As long as there is “adequate basis in support of the

Commission’s choice of evidentiary weight, [the Court], reviewing

under the substantial evidence standard must defer to the

Commission.” Nippon Steel Corp. v. United States, 458 F.3d 1345,

1359 (Fed. Cir. 2006). It is “not within the Court's domain either

to weigh the adequate quality or quantity of the evidence for

sufficiency or to reject a finding on grounds of a differing

interpretation of the record.” Air Prods. & Chems., Inc. v. United

States, 22 CIT 433, 442, 14 F. Supp. 2d 737, 746 (1998) (quoting

Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp. 300, 306

(1988), aff’d 894 F.2d 385 (Fed. Cir. 1990)). The Court “must

affirm a Commission determination if it is reasonable and supported

by the record as a whole, even if some evidence detracts from the

Commission's conclusion.” Altx, Inc. v. United States, 370 F.3d

1108, 1121 (Fed. Cir. 2004) (internal quotations omitted). Here,

the ITC acted within its discretion to determine which data to rely

upon. Furthermore, the ITC reasonably explained its conclusions

regarding likely volume imports and pointed to substantial record

evidence in support of each. Pub. Views at 36-38, 40-43. As such,

the ITC’s determinations regarding likely import volumes from Japan

and Brazil were both supported by substantial evidence and

otherwise in accord with the law.

3. Likelihood of Price Effects

A. Parties’ Arguments
Court No. 11-00228 Page 20

Plaintiffs allege that the ITC’s price effects determinations

are flawed because they are predicated on faulty volume

determinations. Nucor Mem. at 38. AMUSA alleges that the price

effects determination for Japan was erroneous because it compared

products of mismatched price and quality. AMUSA Mem. at 28. Nucor

adds that “pernicious price effects” can stem from a mixture of

overselling and underselling. Nucor Mem. at 37. They dispute the

ITC’s position that underselling by Japanese producers must be

pervasive in order to cause significant adverse price effects. Id.

Nucor alleges that Brazil has the ability to undersell in the

United States by considerable margins. Id. at 39.

Defendants support the ITC’s findings that imports from Japan

and Brazil are unlikely to result in any significant price effects.

Def.’s Mem. at 30, 39. Defendants concur with the ITC’s findings

that insignificant volume increases were based on substantial

evidence. Id. at 30-31, 39. Defendants emphasize that the legal

standard only requires consideration of “significant price

underselling” and “significant depressing or suppressing effect[s]”

on domestic prices, and that the ITC need not consider the possible

effects of mixed overselling and underselling. Japanese Def.’s

Resp. at 33; see also 19 U.S.C. §§ 1675a(a)(3)(A)-(B). Defendants

allege that the ITC reasonably relied on all available data.

Japanese Def.’s Resp. at 33; Def.’s Mem. at 31. The statute only

requires the ITC to consider pricing data for United States imports
Court No. 11-00228 Page 21

and not pricing data for Japanese producers’ import activities in

other countries. Japanese Def.’s Resp. at 33; Def.’s Mem. at 31.

Lastly, Defendants dismiss Plaintiffs’ arguments regarding product

mismatching as non-dispositive, given that the product comparison

represented only a portion of the ITC’s pricing analysis. Japanese

Def.’s Resp. at 32-33. The ITC also examined historic pricing

patterns and found no consistent underselling. Def.’s Mem. at 31.

B. Price Effects Analysis

Plaintiffs contend that the ITC’s pricing determinations are

flawed because of their reliance on the related volume

determinations. However, the Court concluded above that the ITC’s

volume determinations were supported by substantial evidence.

Therefore, this argument is moot.

Additionally, AMUSA’s mismatching argument does not warrant

remand because the ITC’s analysis of potential underselling was

broad-based. The ITC analyzed both historic and likely pricing

trends in addition to the product comparison to which AMUSA

objects. See Pub. Views at 44; see also 19 U.S.C. § 1675a(a)(3).

The ITC’s assessments of the pricing evidence with respect to

imports from Japan and Brazil are reasonable and adequately

explained. Pub. Views at 39, 44. The ITC specifically discussed

its conclusions regarding insignificant price effects with

reference to data reflecting insignificant underselling during the

original period of investigation. Id. at 39, 44-45. The ITC
Court No. 11-00228 Page 22

distinguished between present market conditions in the related

countries and those existing at the time of the original injury

investigation. Id. Here, the evaluation of the evidence is more

than mere conjecture and the ITC’s “decision is reasonably

discernible to the Court.” NMB Singapore Ltd. v. United States,

557 F.3d. 1316, 1319-20 (Fed. Cir. 2009). Therefore, the ITC’s

pricing determination was supported by substantial evidence and

otherwise in accord with the law.

4. Vulnerability of the Domestic Industry

A. Parties’ Arguments

Plaintiffs argue that the ITC’s vulnerability analysis was

flawed because it only discussed the industry’s financial

performance. U.S. Steel Mot. at 29. They allege that the ITC

failed to consider other impact factors such as employment

conditions, production, shipments, capacity utilization, and

growth. U.S. Steel Mot. at 29-30; AMUSA Mem. at 37. Plaintiffs

also contest the ITC’s assessment of the relationship between weak

demand and industry vulnerability. U.S. Steel Mot. at 33; AMUSA

Mem. at 35. They argue that the ITC should have treated weak

demand as a strong indicator of industry vulnerability. U.S. Steel

Mot. at 36; AMUSA Mem. at 35. AMUSA adds that the ITC failed to

explain its finding with reference to the original injury

determinations and the relative trade and financial conditions of

1998. AMUSA Mem. at 38. In addition, Nucor emphasizes that the
Court No. 11-00228 Page 23

ITC’s failure to address evidence from industry questionnaires

severely undermines its conclusion that United States demand was

likely to improve. Nucor Mem. at 20.

Defendants rebut Plaintiffs’ contentions that the ITC’s

assessment focused exclusively on financial performance with

reference to the ITC’s discussion of “other factors” including

employment, wages, and productivity within its analysis of the

Russian suspension agreement. Def.’s Mem. at 33; Japanese Def.’s

Resp. at 36; CSN Def.’s Resp. at 30. They also argue that the

ITC’s determinations would not be presumptively invalid even if

they considered only financial performance. CSN Def.’s Resp. at

31. Defendants further argue that the ITC did not equate weak

demand with lack of vulnerability, and that the “lackluster”

performance of the domestic industry reflected demand conditions in

the context of the business cycle rather than structural

vulnerabilities of the industry itself. Def.’s Mem. at 33-34.

Furthermore, defendants maintain that the restructured domestic

industry was healthier during the second sunset review than during

the original injury determination. Japanese Def.’s Resp. at 38.

Defendants also note that the domestic industry is poised to grow

in tandem with projected United States demand increases in the

foreseeable future. Japanese Def.’s Resp. at 38; CSN Def.’s Resp.

at 33.

B. Vulnerability Analysis
Court No. 11-00228 Page 24

The ITC explained its interpretation that the lackluster

performance of the domestic industry reflected demand conditions in

the context of the business cycle rather than structural

vulnerabilities of the industry itself. Pub. Views at 26-27. The

ITC provided substantial evidence that steel demand has been

historically tied to broad demand trends in the national economy,

and that the industry is poised to experience a recovery with

projected increases in demand. Id. “[W]hen the totality of the

evidence does not illuminate a black-and-white answer to a disputed

issue, it is the role of the [ITC] . . . to decide which . . .

evidence to believe.” Nippon Steel Corp. v. United States, 458

F.3d 1345, 1359 (Fed. Cir. 2006).

The ITC also relied on projections of increased demand. They

contrasted this demand with the demand of the original injury

determination during which unique market conditions existed due to

the Asian financial crisis. Pub. Views at 44. The vulnerability

determination did not conflict with the original injury

determination because the ITC considered changes in market

conditions and projections for increased demand. The ITC also

considered industry factors beyond those strictly related to

financial performance. For example, the ITC’s discussion of

revocation of the suspension agreement with Russia considered

“other factors” such as employment, wages, and productivity, and
Court No. 11-00228 Page 25

was incorporated by reference into the ITC’s discussion of

revocation for Japan and Brazil. Id. at 34.

The ITC is “not required to explicitly address every piece of

evidence presented by the parties” during a sunset review. See,

e.g., Nucor Corp. v. United States, 28 CIT 188, 234, 318 F. Supp.

2d 1207, 1247 (2004), aff’d 414 F.3d 1331 (Fed. Cir. 2005). As

long as “there is adequate basis in support of the Commission’s

choice of evidentiary weight, [this Court], reviewing under the

substantial evidence standard, must defer to the Commission.”

Nippon Steel Corp. v. United States, 458 F.3d 1345, 1359 (Fed. Cir.

2006). Such adequate basis was provided here in the ITC’s views.

Therefore, the ITC’s vulnerability analysis was supported by

substantial evidence and in accord with the law.

5. Likelihood of Adverse Impact

A. Parties’ Arguments

Plaintiffs contend that the ITC’s impact determinations are

flawed because they relied on faulty volume, pricing, and

vulnerability determinations. AMUSA Mem. at 39-40; Nucor Mem. at

39. Defendants believe that the volume and pricing determinations

were reasonable. Def.’s Mem. at 32, 40.

B. Analysis

Plaintiffs’ objections to the ITC’s impact determinations are

entirely predicated on their objections to the ITC’s volume,

pricing, and vulnerability analyses. However, the volume, pricing,
Court No. 11-00228 Page 26

and vulnerability determinations are supported by substantial

evidence and in accord with the law. “[Given that] the Court has

already sustained the Commission's volume and price effects

analyses, . . . the Court finds that the likely impact analysis is

supported by substantial evidence and is otherwise in accordance

with law.” Nucor Corp. v. United States, __ CIT __, 675 F.Supp.2d

1340, 1363 (2010). Therefore, reliance on these determinations to

support an adverse impact analysis gives Plaintiffs no support for

their argument.

CONCLUSION

In accordance with the foregoing, Plaintiffs’ motion for

judgment on the agency record is denied, and this matter is

dismissed.

/s/ NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge

Dated: August 14, 2012
New York, New York