Committee for Fair Beam Imports v. United States

Slip Op. 07-33

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
COMMITTEE FOR FAIR BEAM IMPORTS, :
:
Plaintiff, :
:
v. :
: Court No.
UNITED STATES, : 06-00125
:
Defendant, :
:
and :
:
HYUNDAI STEEL COMPANY, :
:
Defendant-Intervenor. :
________________________________________:

Held: Plaintiff’s motion for judgment upon the agency record
denied. The United States International Trade Commission’s final
determination affirmed.

Wiley Rein & Fielding, LLP, (Alan H. Price; John R. Shane;
Michael William Schisa; Christopher B. Weld) for Plaintiff,
Committee for Fair Beam Imports.

Marc A. Bernstein, Office of the General Counsel, James M.
Lyons, General Counsel, Neal J. Reynolds, Assistant General
Counsel, Office of the General Counsel, U.S. International Trade
Commission for Defendant, United States.

Kaye Scholer, LLP, (Donald B. Cameron; Julie C. Mendoza;
Brady W. Mills; Jahna M. Hartwig) for Defendant-Intervenor,
Hyundai Steel Company.

March 8, 2007

OPINION

This matter is before the Court on motion for judgment upon

the agency record brought by the Committee for Fair Beam Imports
Court No. 06-00125 Page 2

and its individual members Chaparral Steel Company, Nucor

Corporation, Nucor-Yamato Steel Company and Steel Dynamics, Inc.

(collectively “CFBI” or “Plaintiff”) pursuant to USCIT Rule 56.2.

Plaintiff challenges aspects of the United States International

Trade Commission’s (“ITC” or “Commission”) negative final

determination in the five-year sunset reviews concerning structural

steel beams from Japan and Korea. The Court has jurisdiction

pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. §

1516a(a)(2)(A)(i)(I) and (B)(iii) (2000). For the reasons set

forth below, the Court affirms the ITC’s determination and

dismisses this action.

BACKGROUND

On May 2, 2005, the ITC instituted five-year sunset reviews1

of the countervailing duty order on structural steel beams from

Korea and the antidumping duty orders on structural steel beams

from Japan and Korea (collectively, “the orders”). See Structural

1
Five-year reviews are also referred to as “sunset
reviews”:

5 years after the date of publication of . . . a
countervailing duty order . . . [or] an
antidumping duty order . . . the Commission shall
conduct a review to determine, in accordance with
section 1675a of this title, whether revocation of
the countervailing or antidumping duty order . . .
would be likely to lead to continuation or
recurrence of dumping or a countervailable subsidy
. . . and of material injury.

19 U.S.C. § 1675(c)(1).
Court No. 06-00125 Page 3

Steel Beams From Japan and Korea, 70 Fed. Reg. 22,696 (ITC May 2,

2005) (Notice of Institution). On August 5, 2005 the ITC

determined to conduct full reviews of each order.2 See Structural

Steel Beams From Japan and Korea, 70 Fed. Reg. 48,440 (ITC Aug. 17,

2005) (Notice of Commission determination to conduct full five-year

reviews). It consequently issued questionnaires, permitted

interested parties to submit evidence and file briefs, and

conducted a hearing, during which all persons who requested the

opportunity, were permitted to appear. See id.; Structural Steel

Beams From Japan and Korea, 71 Fed. Reg. 13,431 (ITC Mar. 15, 2006)

(Notice). CFBI submitted data compiled by a commercial service

monitoring markets in steel products (“service data”).3 See Pl.’s

2
The ITC found that the domestic interested party group
response to its notice of institution was adequate and that the
respondent interested party group response with respect to Korea
was adequate, but found that the respondent interested party
group with respect to Japan was inadequate. This
notwithstanding, the ITC determined to conduct a full review
concerning subject imports from Japan to promote administrative
efficiency in light of its decision to conduct a full review with
respect to subject imports from Korea. See Structural Steel
Beams From Japan and Korea, 70 Fed. Reg. 48,440 (ITC Aug. 17,
2005) (Notice of Commission determination to conduct full five-
year reviews).
3
The name of the commercial monitoring service is
subject to judicial protective order. Plaintiff submitted the
data onto the record as exhibits to its briefs, and the parties
to the investigation agreed that the data provided useful
information concerning certain conditions of competition. See
Def.’s Resp. at 4; Pl.’s Br. at 15.

Additionally, the Court further omits, and double-brackets
the public version, of certain proprietary information also
subject to this order.
Court No. 06-00125 Page 4

Br. at 15. See generally Pet.’s Prehearing Br., C.R. Doc. 116;

Pet.’s Posthearing Br., C.R. Doc. 125.4 The parties to the

investigation concurred that this data was probative of conditions

of competition.5 See Def.’s Resp. Pl.’s Mot. J. Agency Rec. at 4

(“Def.’s Resp.”).

The ITC’s final determination was issued on March 9, 2006 and

published on March 15, 2006. See Structural Steel Beams from Japan

and Korea, Inv. Nos. 701-TA-401, 731-TA-853-854 (Review) USITC Pub.

No. 3840 (March 2006) (“Final Determination”) (C.R. Doc. 159); 71

Fed. Reg. at 13,431. The ITC determined that “revocation of the

antidumping duty orders on structural steel beams from Japan and

Korea and revocation of the countervailing duty order on structural

steel beams from Korea would not be likely to lead to continuation

or recurrence of material injury to an industry in the United

States within a reasonably foreseeable time.” Final Determination,

C.R. Doc. 159 at 1.

Plaintiff disagrees, and argues that the final determination

4
Citation to the Confidential Record will hereinafter be
referred to as “C.R. Doc.”
5
The commercial monitoring service reported production
and consumption of a product similar, but not identical to
structural steel beams, called “structural long products.” The
parties and the ITC, however, agreed that the structural long
products data were a “useful surrogate” for certain conditions of
competition. See Final Determination, C.R. Doc. 159 at 15.
Court No. 06-00125 Page 5

is unsupported by substantial evidence and otherwise contrary to

law. See Pl.’s Mem. Supp. R. 56.2 Mot. J. Ag. Rec. at 4 (“Pl.’s

Mem.”). Specifically, Plaintiff contests the ITC’s finding with

respect to volume. It insists that the “determination that

revocation of the orders would not result in a significant volume

of subject imports is unsupported by substantial evidence and

otherwise contrary to law” because it was based on what Plaintiff

considers to be “erroneous findings.”6 Id. (listing ITC findings

including, inter alia, that price disparities do not provide

incentive to increase exports to the United States; projections

regarding supply and demand in Asia.). Although Plaintiff also

contests the determinations regarding likely price effects and

impact, it does so only because it contends that, “these

determinations were based in large part on the[ITC’s] erroneous

findings regarding the likely volume of subject imports.” Id. at

4–5. As such, CFBI’s argument focuses, primarily, on the ITC’s

findings on the likely volume of subject imports. See generally

id. at 11–32.

6
In its final determination, the ITC made a series of
findings in support of its ultimate negative determination. See
generally, Final Determination, C.R. Doc. 159. As indicated,
Plaintiff takes issue with several of these findings and argues
that each is unsupported by substantial evidence and otherwise
contrary to law. See generally, Pl.’s Mem. at 11–30. Each
finding will be addressed infra, in turn.
Court No. 06-00125 Page 6

STANDARD OF REVIEW

When reviewing ITC determinations in sunset reviews “[t]he

court shall hold unlawful any determination, finding, or conclusion

. . . found . . . to be unsupported by substantial evidence on the

record, or otherwise not in accordance with law . . . .” 19

U.S.C. § 1516a(b)(1)(B)(i). “Substantial evidence is more than a

mere scintilla.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). “Substantial evidence is ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369,

1374 (Fed. Cir. 2003) (quoting Consol. Edison Co., 305 U.S. at

229). In determining the existence of substantial evidence, a

reviewing court must consider “the record as a whole, including

evidence that supports as well as evidence that ‘fairly detracts

from the substantiality of the evidence.’” Huaiyin, 322 F.3d at

1374 (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556,

1562 (Fed. Cir. 1984)).

DISCUSSION

I. Statutory Framework

The ITC is instructed by statute to evaluate “the likely

volume, price effect, and impact of imports of the subject

merchandise on the industry if the order is revoked . . . .” 19

U.S.C. § 1675a(a)(1). Although the ITC must consider each of these

factors, the Court limits its discussion of price effect and impact
Court No. 06-00125 Page 7

because, in the instant matter, Plaintiff primarily contests the

ITC’s finding with respect to volume. Title 19 U.S.C.

§ 1675a(a)(2) governs this finding, and provides:

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

(A) any likely increase in
production capacity or existing
unused production capacity in
the exporting country,
(B) existing inventories of the
subject merchandise, or likely
increases in inventories,
(C) the existence of barriers to
the importation of such
merchandise into countries
other than the United States,
and
(D) the potential for product-
shifting if production
facilities in the foreign
country, which can be used to
produce the subject
merchandise, are currently
being used to produce other
products.

§ 1675a(a)(2).

Put simply, the ITC must determine whether, considering the

four economic factors set forth in subsections (A) through (D), it

is “likely” that the volume of imports will be “significant” if the
Court No. 06-00125 Page 8

unfair trade orders are revoked.7 Id. “Thus, in accordance with

the statute, in order to find sufficient volume for there to be

injury, the ITC must identify substantial evidence from the record

demonstrating that, should the orders be revoked, it is likely that

the volume of the subject imports entering the U.S. market will be

significant.8” Nippon Steel Corp. v. United States, 29 CIT __, __,

391 F. Supp. 2d 1258, 1275 (2005) (citing 19 U.S.C. § 1675a(a)(2)).

Lastly, 19 U.S.C. § 1677(7)(C) provides further guidance in

evaluating volume during a sunset review.9 It instructs that in

7
The ITC must point to substantial evidence indicating
that each of the four economic factors exist with respect to the
subject country.
8
This Court has defined the word “significant” as
“having or likely to have influence or effect[;] deserving to be
considered[;] important, weighty, notable[.]” Gerald Metals, Inc.
v. United States, 22 CIT 1009, 1013, 27 F. Supp. 2d 1351, 1355
(1998) (internal citation and quotations omitted) (alteration in
original).
9
19 U.S.C. § 1677(7)(C)(i) sets forth that:

For purposes of subparagraph (B) [‘Volume and
consequent impact’] --

(i) Volume
In evaluating the volume of imports
of merchandise, the [ITC] shall
consider whether the volume of
imports of the merchandise, or any
increase in that volume, either in
absolute terms or relative to
production or consumption in the
United States, is significant.

§ 1677(7)(C)(i).
Court No. 06-00125 Page 9

evaluating the significance of the volume, the ITC must do so in

either absolute terms, or relative to production or consumption in

the United States. See § 1677(7)(C)(i).

II. The ITC’s Finding With Respect to Volume Is Supported By
Substantial Evidence and Otherwise In Accordance With Law.

Plaintiff’s contest to the ITC’s finding is reviewed under the

substantial evidence standard. The Court will uphold a

determination by the ITC only if it is supported by substantial

evidence and otherwise in accordance with law. See Nippon, 391 F.

Supp. 2d at 1275. The ITC’s determination, however, is “presumed

to be correct,” and the burden of demonstrating otherwise rests

upon the party challenging the determination. 28 U.S.C. §

2639(a)(1). As such, the party challenging the ITC’s determination

under the substantial evidence standard “has chosen a course with

a high barrier to reversal.” Mitsubishi Heavy Indus., Ltd. v.

United States, 275 F.3d 1056, 1060 (Fed. Cir. 2001). Indeed, the

United States Court of Appeals for the Federal Circuit (“CAFC”) has

indicated that “in the hierarchy of the four most common standards

of review, substantial evidence is the second most deferential, and

can be translated roughly to mean[:] is [the determination]

unreasonable?” See Nippon Steel Corp. v. United States, 458 F.3d

1345, 1352 (Fed. Cir. 2006) (internal citation and quotations

omitted) (alteration in original).

In the instant matter, Plaintiff challenges the sufficiency of
Court No. 06-00125 Page 10

the ITC’s determination on volume by contesting the ITC’s

subsidiary findings. Specifically, CFBI insists that the ITC made

the following “erroneous findings,” each of which it contends is

unsupported by substantial evidence and otherwise contrary to law:

(i) that China’s transition to a net exporter
of subject merchandise had no significant
effect on the behavior of subject producers;
(ii) that demand for structural steel beams in
Asia was projected to be commensurate with the
increase in supply in that region; (iii) that
price disparities do not provide an incentive
for subject producers to increase exports to
the U.S. market; (iv) that the available
information concerning the Canadian steel
beams market was of “limited relevance” and
that it did not indicate that subject imports
would increase significantly in the United
States should the orders be revoked; and (v)
that subject producers have no incentive to
significantly increase their presence in the
U.S. market.

Pl.’s Mem. at 4. Each of Plaintiff’s arguments will be addressed

in turn.

In determining the existence of substantial evidence, a

reviewing court must consider “the record as a whole, including

evidence that supports as well as evidence that ‘fairly detracts

from the substantiality of the evidence.’” Huaiyin, 322 F.3d at

1374 (quoting Atl. Sugar, 744 F.2d at 1562. Indeed, “the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding from

being supported by substantial evidence.” Consolo v. Fed. Mar.

Comm’n., 383 U.S. 607, 619–20 (1966); see also Am. Silicon Techs.
Court No. 06-00125 Page 11

v. United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001). Based on

the totality of the record before it, the Court may find that the

ITC’s ultimate conclusion is supported by substantial evidence,

even where it determines that a subsidiary finding is unsupported

by substantial evidence. See United States Steel Group v. United

States, 96 F.3d 1352, 1364–65 (Fed. Cir. 1996).

Moreover, that a challenging party seeking review

can point to evidence [on] the record which
detracts from the evidence which supports the
[International Trade] Commission’s decision
and can hypothesize a reasonable basis for a
contrary determination is neither surprising
nor persuasive. It is not the function of a
court to decide that, were it the Commission,
it would have made the same decision on the
basis of the evidence.

See Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d

927, 936 (Fed. Cir. 1984). For “[i]t 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.” See Stalexport and Huta

Czestochowa v. United States, 19 CIT 758, 763–64, 890 F. Supp.

1053, 1059 (1995). Accordingly, the question for the reviewing

Court is “not whether we agree with the Commission’s decision, nor

whether we would have reached the same result as the Commission had

the matter come before us for decision in the first instance.”

U.S. Steel, 96 F.3d at 1357. Instead, this Court “must affirm a

Commission determination if it is reasonable and supported by the
Court No. 06-00125 Page 12

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

Commission’s conclusion.” See Altx, Inc. v. United States, 370

F.3d 1108, 1121 (Fed. Cir. 2004) (internal quotations omitted). In

short, the Court does “not make the determination; [it] merely

vet[s] the determination.” See Nippon, 458 F.3d at 1352.

For the reasons that follow, the Court finds that the ITC’s

determination with respect to likely volume is both supported by

substantial evidence and otherwise in accordance with law. In each

of the arguments posed by Plaintiff, Plaintiff attacks the

substantiality of the evidence supporting the ITC’s findings by

proffering its own evidence supporting the opposite conclusion. It

claims that the record in its entirety does not support the ITC’s

final determination because of what it considers to be

“overwhelming” evidence to the contrary. See Pl.’s Br. at 8.

This, Plaintiff insists renders the ITC’s finding unreasonable.

The Court disagrees. As will be demonstrated infra, with respect

to each contested finding, the ITC reached a reasonable conclusion,

supported by substantial evidence.

A. Developments in Asian Markets and Likely Volume

Plaintiff contests the ITC’s finding regarding whether recent

and projected developments in Asian markets would have a

significant effect on exports to the United States should the

orders be revoked. See generally Pl.’s Br. at 9–21. Specifically,
Court No. 06-00125 Page 13

CFBI sets forth a series of arguments regarding conditions of

competition in the People’s Republic of China (“China”) and its

relation to exports from Korea and Japan. Id. Although the ITC’s

sunset reviews did not directly implicate China or Chinese

producers, there was no dispute that conditions in the Chinese

market were relevant to the ITC analysis. See Def.’s Resp. at 13

(“China was both a significant consumer and . . . producer of

structural products and the large Chinese market was reasonably

proximate to the subject producers in Japan and Korea.”).

a. The ITC’s Determination that China’s Transition to a Net
Exporter Has Not Had a Significant Effect is Supported by
Substantial Evidence and Otherwise in Accordance with
Law.

Plaintiff insists that the ITC “erred in concluding that

China’s transition to a net exporter of the subject merchandise had

no significant effect on the behavior of subject producers.” Pl.’s

Mem. at 9. Although it acknowledges that Defendant “examined

whether developments in Asian markets would provide subject

producers the motivation to significantly increase exports to the

United States,” Plaintiff argues that in reaching its conclusions,

the ITC “failed to consider the record in its entirety and failed

to adequately account for . . . evidence opposed to its views.” Id.

at 9–10. CFBI contends that due to China’s shift to net exporter,

Chinese producers have displaced Japanese and Korean producers from

China and other markets in Asia. See id. In other words,

Plaintiff maintains that exports of competitively-priced Chinese
Court No. 06-00125 Page 14

merchandise are capturing a market share that once belonged to the

Japanese and Korean producers. See Pl.’s Reply Br. Supp. R. 56.2

Mot. J. Ag. Rec. at 6 (“Pl.’s Reply”). As a result, Plaintiff

insists, upon revocation of the orders, Japanese and Korean

producers will be forced to increase exports to alternative

markets, including the United States. See Pl.’s Mem. at 9–10.

Further, CFBI points to record evidence it contends contradicts the

ITC’s finding on the effect of China’s transition to net exporter.10

See id. 9–13.

This Court will affirm an ITC determination if it is

reasonable and supported by the record as whole, even if some of

the record evidence detracts from the ITC’s finding. See Altx, 370

F.3d at 1121. Here, the Court finds that the ITC did support its

determination with respect to the effect of China’s transition to

net exporter. It both explained its findings and supported them

with substantial record evidence. See Int’l Imaging Materials,

Inc. v. United States, 30 CIT __, __, Slip Op. 06-11 at 13 (Jan.

23, 2006) (not published in the Federal Supplement)(indicating that

10
Plaintiff devotes several pages of its brief
identifying data for limited Asian markets, such as Singapore;
data representing limited periods of time; and press information.
See Pl.’s Mem. at 11 (“China has increased imports to Singapore -
by 167 percent in 2004 and by 13 percent in . . . 2005 . . .
Korean exports to Singapore have dropped significantly.”); id. at
12 (citing China’s Growing Strength in Steel Trade Worries
Neighbors, Steel Week, Vol. 11, No. 31, Oct. 14, 2005, C.R. Doc.
116 at Exh. 13A) (“Industry experts confirm the substantial
impact of growing Chinese beam exports on subject producers.”).
Court No. 06-00125 Page 15

an agency must set forth its reason for decision).

As acknowledged by Plaintiff, the ITC examined whether China’s

transition to a net exporter had an effect on the behavior of the

subject merchandise producers in Japan and Korea. Upon considering

the record evidence before it, the ITC rejected CFBI’s argument

that China’s transition significantly “displaced” the subject

producers from Asian markets. See Final Determination, C.R. Doc.

159 at 20 (“We have . . . examined whether recent and likely

developments in Asian markets would provide subject producers the

motivation to increase exports to the United States to significant

levels should the orders be revoked. We have particularly focused

on the transition in China . . . from a ‘net importer’ to a ‘net

exporter’ of beams.”). Instead, it found that “[t]he record does

not indicate that the transition in China has caused any

significant change to the behavior of the subject producers.” Id.;

see also Def. Intevenor’s Br. Opp’n Pl.’s R. 56.2 Mot. J. Ag. Rec.

at 16 (“Def. Int.’s Br.”).

In accordance with the substantial evidence standard, the ITC

set forth its rationale for its conclusion. First, the ITC

explained that based upon the totality of the record evidence, it

concluded that China’s status as net exporter would not be likely

to “cause any significant change to the Japanese producers’

behavior in the reasonably foreseeable future.” Final
Court No. 06-00125 Page 16

Determination, C.R. Doc. 159 at 21. It based this conclusion,

primarily, on two findings: (1) that Japanese exports to Asia

peaked and were significantly declining prior to the Chinese

transition; and (2) Japanese producers are focused on their home

markets, and export markets, therefore, are of limited importance.

See id. at 20 (citing Structural Steel Beams From Japan and Korea,

Staff Report to the ITC (Feb. 7, 2006), C.R. Doc. 145, Table IV-6);

see also Def.’s Resp. at 14. In its final determination, the ITC

pointed to record evidence to support its conclusion and explained

that:

[D]uring the period of review, Japanese
producers were overwhelmingly focused on their
home market; at least [[a very significant]]
percent of reported shipments were directed to
the home markets during each calendar year or
interim period . . . . [T]he only calendar
year in which Japanese producers’ home market
shipments were less than [[a substantial]]
percent of their total shipments was 1998,
when home market demand had plummeted due to
the Asian financial crisis. We observe that
Japanese producers’ reported exports to Asia
peaked . . . well before the Chinese
transition. The Japanese producers did not
attempt to recoup declining Asian export
shipments . . . they simply operated at lower
capacity utilization levels. Consequently,
the record does not indicate that the Chinese
transition has resulted in any changes to
Japanese producers’ likely behavior. Instead,
it indicates that the overwhelming focus of
these producers is on their home market and on
other Asian markets.

Final Determination, C.R. Doc. 159 at 20 (internal citation

omitted).
Court No. 06-00125 Page 17

Having reached, and supported its conclusion with respect to

Japan, the ITC then examined the potential effects of China’s

transition on Korean producers.11 See id. at 21. It determined

that the Chinese transition did not impair Korean producers’

ability to export merchandise. On the contrary, it found that

Korean producers’ exports to Asian markets reached a peak in 2004.

Moreover, the ITC found that although the producers’ exports to

Asian markets were lower in interim 2005 than in interim 2004,

Korean aggregate exports were higher to all markets in interim 2005

than in interim 2004. See id. (citing C.R. Doc. 145, Table IV-7).

“Consequently, the data on the record indicate that the Chinese

transition has not reduced Korean producers’ ability to export

subject merchandise.” Id.

The ITC further determined that the Chinese transition also

11
The ITC further explained that the record indicates
that the transition in China is not likely to cause any
significant change in supply or demand in either China or to Asia
in the reasonably foreseeable future. Final Determination, C.R.
Doc. 159 at 21. It offered the following explanation in support
of its conclusion:

During the period of review, Chinese
production increased more rapidly than
Chinese consumption. China shifted from
being a net importer of structural long
products to being a next [sic] exporter
during the third quarter of 2004. The
surplus of production over consumption is
expected to decline in 2006 and increase
[minimally] from the 2006 level in 2007.

Id.
Court No. 06-00125 Page 18

did not significantly impair Korean producers’ ability to supply

their home market. See id.; see also Def.’s Resp. at 15. In

interim 2005, Korean producers’ home market share was substantial,

and only minimally lower than the peak market share previously held

by the Korean producers. See Final Determination, C.R. 159 at 21

(citing Korean Producers Posthearing Brief at Q-2). Although

slightly lower than the Korean producers’ peak, Korean producers’

interim 2005 market share was, nonetheless, greater than the market

share the Korean producers reached during two of the three

preceding calendar years. See id.; Def.’s Resp. at 15 (citing C.R.

Doc. 126 at Q-2). Thus, the ITC reasonably concluded that “the

Chinese transition to net exporter status does not appear to have

significantly dislocated the Korean producers, who displayed very

high capacity utilization during the latter portion of the period

of review, from either their home market, their Asian export

markets, or their export markets generally.” Final Determination,

C.R. Doc. 159 at 21; see also Def.’s Resp. at 15 (“In light of this

data, the Commission reasonably concluded that China’s becoming a

net exporter of structural steel products in 2004 did not have a

significant impact on the home market or export sales patterns of

the subject producers in 2005.”). Accordingly the ITC found that

China’s net export status will not “likely cause any significant

change to the Korean producers’ behavior in the reasonably

foreseeable future.” Final Determination, C.R. Doc. 159 at 21.
Court No. 06-00125 Page 19

The Court finds that the ITC supported each of its conclusions

with substantial record evidence. That Plaintiff points to

evidence it considers to detract from the ITC’s determination, does

not, in this instance, warrant remand. Indeed, “[s]o 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, 458 F.3d

at 1359. The Court, therefore, affirms the ITC’s conclusion with

respect to the effect of China’s transition to a net exporter of

structural steel beams.

b. The ITC’s Determination Regarding Supply and Demand in
the Subject Countries and China is Supported by
Substantial Evidence and Otherwise in Accordance with
Law.

Plaintiff maintains that the “record flatly contradicts the

[ITC’s] findings” with respect to both supply and demand. Pl.’s

Br. at 15. Contrary to the ITC’s findings, Plaintiff argues that

there is substantial record evidence indicating that demand for

steel beams in Asia is slowing. See id. It relies primarily upon

the service data, which it contends demonstrates that growth in

Asian consumption is projected to decline slightly in 2005, with a

further decline expected during the end of 2006 and 2007. See id.

(citing Pet.’s Posthearing Br., C.R. Doc. No. 125, Exh. 16A.).

CFBI claims that Japan has experienced a decline in consumption,

with negligible increases projected for 2006 and 2007, followed by
Court No. 06-00125 Page 20

declines in 2008 and 2009. See id. at 15–16. It continues that

“[g]rowth projections in Korea are similarly constrained.” Id. at

16 (“The Korea Iron and Steel Association . . . reports that

apparent consumption for section products declined by 7.1 percent

from fiscal year (ending March 31) 2003 to 2005.”). Plaintiff

finally maintains that “[a]dditional data placed on the record by

Petitioner show that demand for steel beams in both Japan and Korea

is projected to slow, if not decline.” Id. (citing Pet.’s

Prehearing Br., C.R. Doc. 116 at 34–37; Pet.’s Posthearing Br.,

C.R. Doc. 125 at 5–6). It insists that both this, and the service

data refute the ITC’s findings with respect to demand, but

“received virtually no consideration or analysis” by the ITC. Id.

As a result of this decreased consumption, Plaintiff maintains

that Asian production exceeds demand, and thereby results in an

oversupply of steel beams in the region. See id. It claims that

the service data projects a continued gap between production and

consumption in Asia though 2010. See id. at 17. Due to the gap

between production and consumption, CFBI further contends that

China is experiencing oversupply. See id. at 18. In addition, it

claims that the record contains “other expert forecasts projecting

a global oversupply of beams, stemming in large part from the

growing gap between production and consumption in Asia.” Id. at

19. This evidence of oversupply, Plaintiff claims, contradicts the

ITC’s findings regarding supply and demand for steel beams in Asia
Court No. 06-00125 Page 21

in the reasonably foreseeable future. See id. at 20. CFBI

maintains that there is no indication that the ITC considered the

evidence it claims detracts from the ITC’s findings. See id. at

20–21 (“The Commission, therefore, failed to take into account the

body of evidence opposed to [its] views, failed to consider the

entirety of the record, and failed to base its findings on

substantial evidence as required by law.”) (internal citation and

quotations omitted).

In the instant inquiry, the Court finds that the ITC

comprehensively examined whether conditions of competition in Asian

markets would likely change significantly in the reasonably

foreseeable future. See Final Determination, C.R. Doc. 159 at 19.

It did so not only by considering the evidence supporting its

conclusion, but all of the evidence placed upon the record. Based

upon the record evidence, it then concluded that there was not

likely to be a significant change in the supply of, or demand for

structural steel beams in China, or East and Southeast Asia in the

reasonably foreseeable future. See id. That Plaintiff may point

to record evidence it contends contradicts the ITC’s finding does

not alone warrant remand. It is well-established that a Commission

“determination will not be ‘overturned merely because the plaintiff

is able to produce evidence . . . in support of its own contentions

and in opposition to the evidence supporting the agency’s

determination.’” Timken Co. v. United States, 27 CIT __,__, 264 F.
Court No. 06-00125 Page 22

Supp. 2d 1264, 1268–69 (2003) (quoting Torrington Co. v. United

States, 14 CIT 507, 514, 745 F. Supp. 718, 723 (1990), aff’d, 938

F.2d 1276 (Fed. Cir. 1991) (internal quotations omitted). Indeed,

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.”

Stalexport, 19 CIT at 763–64, 890 F. Supp. at 1059. Finally, the

Court finds that the ITC explained the rationale for its conclusion

in a manner which allowed this Court to review its line of

analysis, reasonable assumptions and other considerations. See

Int’l Imaging Materials, 30 CIT at __, Slip Op. 06-11 at 13 (“[An]

agency must explain its rationale . . . such that a court may

follow and review its line of analysis, its reasonable assumptions,

and other relevant considerations.”). For these reasons, and those

that follow, the Court affirms the ITC’s determination regarding

conditions of competition in the subject countries and China.

As an initial matter, the ITC explained that the type of

subject import surge that occurred during the original

investigations would not be likely to recur upon revocation of the

orders. See Final Determination, C.R. Doc. 159 at 19–20; see also

Def. Int.’s Br. at 10. This surge was primarily due to: (1) the

1997–1998 Asian financial crisis,12 which resulted in depressed

12
The Asian financial crisis was a period of “extreme
difficulties in the financial and construction sectors of Pacific
Rim countries including Japan and Korea, which depressed steel
Court No. 06-00125 Page 23

demand for structural steel beams throughout Asia; and (2) a

shortage in the supply of domestically produced beams. See Certain

Structural Steel Beams from Japan, Inv. No. 731-TA-853 (Final),

USITC Pub. 3308 at 10–11 (June 2000); see also Final

Determination, C.R. Doc. 159 at 19. The ITC noted that “[n]either

of these particular conditions of competition is present now or is

likely to be present in the reasonably foreseeable future.” Id. at

19.

The ITC then examined current and projected conditions of

competition and found that consumption of structural long products

increased during the period of review, and was projected to further

increase in 2006 and 2007. Id. at 15–16 (citing CFBI Prehearing

Br., ex. 6A, Table 5S); see also Def. Int.’s Br. at 16 (“[CFBI]

does not and cannot maintain that demand is declining because the

[service] data that it submitted to the Commission unequivocally

shows [a different conclusion].”). Specifically, it found that

since the Asian financial crisis, there “are no current or

anticipated declines in Asian demand;” that “demand has increased;”

and, is projected to “grow further in these areas in the

foreseeable future.” Final Determination, C.R. Doc. 159 at 19. In

beam demand in those countries. Indeed, in East and Southeast
Asia, including China, consumption of structural long products
declined . . . from 1997 to 1998.” Final Determination, C.R.
Doc. 159 at 15.
Court No. 06-00125 Page 24

support of this, the ITC cites to various service data tables and

reports, the original ITC determination, and CFBI’s Prehearing

Brief. See C.R. Doc. 159 at 15–16 n.97–n.102.

Second, the ITC addressed CFBI’s contentions regarding

oversupply. It determined that although global production of

structural long products declined from 2000 to 2001, it increased

in 2005, and is projected to further do so in 2006 and 2007. See

id. at 16 (citing C.R./P.R. Table IV-9; IV-10). It examined supply

trends and the potential surplus of production over consumption.

The ITC acknowledged the likely surplus, but explained that:

During the period of review, in East and
Southeast Asia generally (including China),
production of structural long products
exceeded consumption. The surplus of
production over consumption was at its
[[peak]] in 2000, declined each year until
2003, and increased thereafter. This surplus
is forecast to decline in 2006 and then
increase [[relatively minimally]] in 2007 . .
. [Moreover,] [t]he surplus of production over
consumption in China is expected to decline in
2006 and increase only [[minimally]] from the
2006 level in 2007.

Final Determination, C.R. Doc. 159 at 16 (citing service data

submitted by CFBI). Thus, the ITC pointed to record evidence

supporting its finding that the surplus of production over

consumption in East and Southeast Asia would decline in 2006,

increase minimally in 2007, and that the surplus of production over

consumption in China would decline in 2006 and increase minimally

from the 2006 level in 2007. See id. at 16, 21 (citing CFBI
Court No. 06-00125 Page 25

Posthearing Br., Exh. 16A, Tables S5, S12.). Based upon these

projections, and the entirety of the record evidence, the ITC

reasonably found that the relationship between supply and demand in

Asian markets was unlikely to change significantly in the

reasonably foreseeable future, and, thus, concluded that supply and

demand conditions in those markets would not likely cause any

significant change to the subject producers’ behavior. See id. at

21. (“Because we do not perceive any major changes in conditions

of competition in these markets to be likely in light of projected

supply and demand trends, we do not perceive that conditions in

Asia will likely cause any significant change to the subject

producers’ behavior in the reasonably foreseeable future.”).

c. The ITC’s Finding that Price Differentials Would Not
Likely Affect Exporter Behavior is Supported by
Substantial Evidence and Otherwise in Accordance with
Law.

In its final determination, the ITC concluded that price

differentials would not likely affect exporter behavior. See Final

Determination, C.R. Doc. 159 at 22. Plaintiff argues that this

conclusion “defies logic and is not supported by substantial

evidence.” Pl.’s Br. at 21. In support of this, Plaintiff points

to evidence of instances where “Korean producers have sought more

attractively priced markets. . . .” Id. at 22. It also contends

that the ITC “failed to consider record evidence demonstrating that

the current price gap between the U.S. and world markets is a
Court No. 06-00125 Page 26

relatively new phenomenon.” Id. at 23. Related to this point, it

further argues that the ITC additionally “failed to consider the

most recent pricing data of record, showing [a] growing price gap

between the U.S. and world markets.” Id. at 24. Overall,

Plaintiff maintains that “the record contains substantial evidence

of a significant and growing price gap that provides more than

sufficient incentive for subject producers to export large volumes

of steel beams to the U.S. market.” Id. at 25.

In reaching its determination, the ITC examined whether price

differentials between the United States domestic market and other

markets were likely to lead to an increase in subject import volume

if the orders were revoked. See Final Determination, C.R. Doc. 159

at 22; Pl.’s Br. at 21; Def.’s Resp. at 23. In so doing, the ITC

examined past export trends. It found that the record data

indicated that there was a large disparity between prices in the

United States and those in China and other markets from 2000

through the first half of 2002. See Final Determination, C.R. Doc.

159 at 22 (citing C.R./P.R. Table I-8). Despite this, and contrary

to Plaintiff’s theory, it observed that total import penetration

into the United States decreased sharply after 2000. Id. (citing

C.R./P.R. Table I-1). Contra, Pl.’s Reply at 13 (“[T]he record

shows a strong correlation between price disparities and exports

. . . the gap between prices in the United States and Asia widened

substantially . . . resulting in a surge of imports from [Asian
Court No. 06-00125 Page 27

markets].”). A similar lack of correlation between price

differentials and import volume was also observed in 2005, when the

domestic price for medium sections and beams was higher than in

several Asian markets. See Final Determination, C.R. Doc. 159 at

22 (citing CFBI Posthearing Br., Exh. 16D at 23). Prices for beams

in 2005 were considerably higher in the United States than in

China, and in several foreign markets. This notwithstanding, the

ITC concluded that the record indicates that no influx of imports

into the United States from any source occurred during 2005, also

the time when China was a net exporter. See id. On the contrary,

the domestic industry’s share of apparent U.S. consumption was 95.4

percent in interim 2005, only two-tenths of a percentage point

below peak market penetration reached during the period of review.

See id.

Having found a lack of correlation between price disparities

and increased imports into the United States, the ITC reasonably

concluded that the record evidence “does not support the contention

advanced by [CFBI] that price differences between U.S. and Asian

markets are likely to provide an incentive for the subject

producers to increase exports to the United States at such a rate

as to cause the domestic industry to lose significant market share

if the orders are revoked.” Id. at 23. The Court finds that this

conclusion is both supported by substantial record evidence and

otherwise in accordance with law. As discussed supra, it is not
Court No. 06-00125 Page 28

the province of the Court to reweigh the evidence before the

agency. See Nippon Steel Corp., 458 F.3d at 1359. The Federal

Circuit has made clear that “when the totality of the evidence does

not illuminate a black-and-white answer to a disputed issue, it is

the role of the expert factfinder - here the majority of the

Presidentially-appointed, Senate-approved Commissioners - to decide

which side’s evidence to believe. So long as there is adequate

basis in support of the [ITC’s] choice of evidentiary weight, [this

Court,] reviewing under the substantial evidence standard, must

defer to the [ITC].” Id. Here, that there was evidence both

supporting and detracting from the ITC’s finding illustrates that

the answer to the instant inquiry was not, as it rarely is, black-

and-white. Accordingly, it is the role of the ITC to weigh the

evidence, and support its conclusion with substantial evidence.

See id. at 1358 (“[T]he resolution of these questions [relating to

‘the proper weight of evidence’] must be left to the expert

factfinder.”). The Court finds that the ITC reasonably determined

that the record evidence does not support the claim that price

differences between U.S. and Asian markets are likely to provide an

incentive for the subject producers to increase exports to the

United States upon revocation of the orders.

The Court also addresses an ancillary argument posed by

Plaintiff. Plaintiff mischaracterizes the ITC’s position regarding

whether price disparities between the United States and other
Court No. 06-00125 Page 29

markets provide incentive to increase exports into the United

States upon the revocation of the orders. See Def. Int.’s Br. at

19–20. In its brief, CFBI cites to a finding reached by the ITC in

the original investigation. See Pl.’s Br. at 22 (citing

Determination and Views of the Commission, Certain Structural Beams

from Japan, Inv. No. 731-TA-853 (Final) USITC Pub. 3308, P.R. Doc.

No. 18 at 18 (June 2000)) (“[T]he Commission itself recognized in

the original investigation that attractively-priced markets create

a major incentive for subject producers.”). In the original

investigation the ITC stated that “subject producers have a great

incentive to ship significant quantities of subject merchandise to

the United States. Prices in the U.S. market have recently

recovered to 1997 levels. This makes the United States . . . an

attractive market for the subject imports.” Id. at 23. Plaintiff

points to this, and argues that despite this finding the ITC “now

baldly asserts that price disparities have no influence on export

patterns and create no incentive for subject producers.” Id. It

further contends that the ITC erred in offering “no reasonable

explanation for why subject producers would not be immediately

attracted to the highest priced markets should the orders be

revoked.” Id. Plaintiff’s argument fails for two reasons.

First, it is well established that “‘each injury investigation

is sui generis, involving a unique combination and interaction of

many economic variables; and consequently, a particular
Court No. 06-00125 Page 30

circumstance in a prior investigation cannot be regarded by the

[ITC] as dispositive of the determination in a later

investigation.’” U.S. Steel Group v. United States, 18 CIT 1190,

1213, 873 F. Supp. 673, 695 (1994) (quoting Connecticut Steel Corp.

v. United States, 18 CIT 313, 318, 852 F. Supp. 1061, 1066 (1994)).

Here, the ITC was presented with different facts and economic

conditions than were presented in the prior determination. As

indicated, prior determinations do not bind the ITC in the

determination currently at issue. See id. Further, although the

Court believes that it was adequately explained, the Court finds

that the ITC was not obligated to explain why the subject producers

would not shift their imports toward attractively-priced markets

should the orders be revoked. See id. (“[T]he court finds that

the [ITC] was not obligated to explain in any particular manner the

change in its views on [its findings] from prior determinations, as

its analysis was clearly based on a different set of facts.”); see

also Allied-Signal Aerospace Co. v. United States, 28 F.3d 1188,

1191 (Fed. Cir. 1994). Plaintiff argues that the ITC offered “no

reasonable explanation for why subject producers would not be

immediately attracted to the highest priced market” upon

revocation. Pl.’s Br. at 23. Plaintiff’s argument misses the

point. The ITC need not hypothesize about why an economic actor

may behave in a certain manner. Instead, the ITC is charged with

reviewing the record evidence and reaching a conclusion which is
Court No. 06-00125 Page 31

both reasonable and supported by substantial evidence. In the

instant matter, the ITC fulfilled its duty and both pointed to

record evidence in support of its conclusion, and explained why its

conclusion is valid. See Sichuan Changhong Electric Co., Ltd., v.

United States, 30 CIT __, __, 460 F. Supp. 2d 1338, 1348 (2006).

Indeed, the ITC weighed the record evidence, found and explained a

lack of correlation between price differentials and domestic import

volume, and reached a reasonable conclusion. As such, for the

reasons set forth above, the Court affirms the ITC’s finding on the

potential effect of price differentials.

B. Relevance and Use of Canadian Import Data

a. The ITC’s Finding Regarding the Limited Relevance of
Canadian Data is Supported by Substantial Evidence and
Otherwise in Accordance with Law.

To further bolster its position, CFBI relies upon record

evidence concerning the Canadian beams market.13 It claims that

Canada is the “most accurate test case for what will happen in the

United States should the orders be revoked.” Pl.’s Br. at 29. The

13
According to Plaintiff’s Brief, both “parties
acknowledged . . . that due to Canada’s proximity and similar
demand structure, its beams market closely resembles that of the
United States (other than in sheer size).” Pl.’s Br. at 25–26
(citing Pet.’s Posthearing Br., C.R. Doc. 125 at 10; Resp’t
Prehearing Br., C.R. Doc. 119 at 6). Accordingly, both
Petitioner and Respondent placed upon the record information
concerning the Canadian beams market. See Pl.’s Br. at 26. In
addition, the relevance of said information was discussed during
the hearing before the ITC. Id. (citing Hearing Trans., P.R.
Doc. No. 102 at 98-100).
Court No. 06-00125 Page 32

ITC, however, concluded that the Canadian import information

introduced by the parties is of limited relevance. See Final

Determination, C.R. Doc. 159 at 22. Plaintiff maintains that this

finding is not supported by substantial evidence. See Pl.’s Br. at

26 (arguing that the ITC’s conclusion is “difficult to comprehend”

and its “explanation for how it reached its conclusion is wholly

inadequate.”). It further contends that, to the extent that the

ITC did consider the Canadian import data, it relied upon

incomplete data and disregarded the most recent information

available. See id. at 27. It claims that the ITC should have

relied upon “the most recent publicly available data” for November

2005 to January 2006, including Canadian licensing data for the

first 21 days of January. Id. at 28. CFBI insists that the

comprehensive record evidence demonstrates that Korean producers

are “employing aggressive pricing tactics to gain market share in

Canada at the expense of U.S. producers.” Id. at 29. The Court

finds CFBI’s arguments to be unconvincing.

Plaintiff’s claim regarding the relevance of the Canadian

import data lacks merit. The ITC is not obligated to collect or

consider data on conditions of competition in the Canadian market.

See 19 U.S.C. § 1675a(a)(2). As reflected in its final

determination, the analysis in a sunset review focuses on likely

conditions in the United States market. See Final Determination,

C.R. Doc. 159 at 22 n.153. The statute does not require that the
Court No. 06-00125 Page 33

ITC ascertain the actual or likely significance of import volume in

markets other than in the United States. See 19 U.S.C.

§ 1675a(a)(2); Def.’s Resp. at 32 n.18. Instead, § 1675a(a)(2)

directs the ITC to “consider whether the likely volume of imports

of the subject merchandise would be significant if the order is

revoked or the suspended investigation is terminated, either in

absolute terms or relative to production or consumption in the

United States.” 19 U.S.C. § 1675a(a)(2) (emphasis added).

The ITC explained that “[e]valuation of conditions in a

foreign market, such as Canada, can only be pertinent to the

statutory inquiry if conditions of competition in that market

resemble conditions of competition in the United States.” Final

Determination, C.R. Doc. 159 at 23 n.153. It continued that,

although CFBI, in its submissions, “appears to assume that Canadian

conditions of competition closely parallel those in the United

States, it did not submit any information that would permit [the

ITC] to evaluate this assumption.”14 Id. Moreover, there was

14
Although substantially a post hoc rationalization, in
its response, Defendant, set forth the following:

The available information about conditions of
competition in Canada . . . was limited and
did not indicate that Canadian conditions of
competition mirrored those in the United
States. For example, there was no detailed
pricing data in the record for Canada of the
type collected for structural steel beams
sold in the United States during the period
of review. Similarly, there was no
Court No. 06-00125 Page 34

information on the record “suggesting that there may be conditions

of competition relating to demand in Canada that are unique to that

country.” Id. (citing Hearing Tr. at 262 (Lee)). For example, the

ITC indicated that there had been no producer of structural steel

beams in Canada during the period of review. As a result, the

Canadian market has been entirely dependent on imports.

The CAFC has emphasized that it is “the [ITC’s] task to

evaluate the evidence it collects during its investigation,” and

“[c]ertain decisions, such as the weight to be assigned a

particular piece of evidence, lie at the core of that evaluative

process.” United States Steel Group, 96 F.3d at 1357. In the

instant matter, the ITC complied with its statutorily defined

inquiry and examined evidence relevant to the United States market.

In addition, it evaluated, but placed less weight on the proffered

Canadian import information, and explained its decision to do so.

See Final Determination at 17, 22–23. The ITC was well within its

discretion in discounting the probative value of the Canadian

import data. Indeed, during an investigation, the ITC “collects

information in the record indicating whether
Canadian purchasers were similar to U.S.
purchasers in preferring to purchase U.S.-
produced beams for non-price reasons.
Furthermore, the available data indicated
that trends in apparent consumption of
structural steel beams were appreciably more
volatile in Canada than in the United States.

Def.’s Resp. at 31 (internal citation omitted).
Court No. 06-00125 Page 35

extensive economic data from which it develops a thorough

understanding of extremely intricate economic interactions. This

thorough understanding permits the [ITC] to evaluate each piece of

evidence in context and to reach well-supported determinations

which take account of as many aspects of a complicated economic

reality as possible.” United States Steel Group, 96 F.3d at 1358.

Notwithstanding the paucity of the Canadian import information

submitted to it, the ITC nonetheless evaluated whether the data

supported CFBI’s contention regarding the correlation between the

Canadian market and the result of revocation of the orders.15 See

Final Determination, C.R. Doc. 159 at 23. The ITC determined that

15
The ITC made the following findings regarding the
Canadian import information:

This information indicates that neither the
2004 transition of China from a net importer
to a net exporter of structural long products
nor any purported price disparities between
North American markets and those in Asia have
affected U.S. producers’ status as the
dominant supplier of structural steel beams
to Canada, which has no domestic structural
steel beams industry. Although Korean
exports to Canada increased on both an
absolute and relative basis in 2004, U.S.
exporters increased their market share that
year by eight percentage points. In 2005,
despite increased Korean exports during the
latter portion of the year, U.S. market
penetration was higher, and Korean market
penetration was lower, than in 2004.

Final Determination, C.R. Doc. 159 at 22–23 (internal citation
omitted). Contra, Pl.’s Br. at 28-29.
Court No. 06-00125 Page 36

“the available information concerning Canada does not support the

contention advanced by [CFBI] that price differences between the

U.S. and Asian markets are likely to provide an incentive for the

subject producers to increase exports to the United States.” Id.

Given the relative dearth of evidence supporting CFBI’s claim,

and the evidence to the contrary, there is no reason why the ITC is

obligated to consider CFBI’s conjecture without the benefit of

record evidence. See Comm. for Fairly Traded Venezuelan Cement v.

United States, 27 CIT __, __, 279 F. Supp. 2d 1314, 1337–38 (2003).

Indeed, Plaintiff’s insistence that Canada is the “best indicator”

of how subject producers would react absent unfair trade orders is

based on incomplete evidence and lacking evidentiary support.

Despite certain superficial similarities, the available record

evidence does not provide an adequate basis to treat Canada, in

essence, as a surrogate. The ITC must base its assessment on

“currently available evidence and on logical assumptions and

extrapolations flowing from that evidence.” Matsushita, 750 F.2d

at 933. In the instant matter, CFBI has not pointed to sufficient

record evidence indicating that conditions of competition in Canada

resemble conditions of competition in the United States. As such,

the ITC was within its discretion to afford limited relevance to

the information at issue. See e.g., Comm. for Fairly Traded

Venezuelan Cement, 27 CIT at __, 279 F. Supp. 2d at 1337 n.39

(sustaining the ITC’s determination where it “looks at all the
Court No. 06-00125 Page 37

evidence that’s before it. It just found that because [the

evidence] was mixed, it wasn’t compelling . . . .”). It should be

noted, however, that the Court does not rule on the relevance of

the Canadian import data but simply finds that, for the

aforementioned reasons, the ITC was within its discretion to afford

limited weight to the data.

In addition to questioning the ITC’s finding on relevance,

Plaintiff insists that the ITC erred in “not adequately assessing

the most recent information available,” as contained in the Korean

Producers’ Posthearing Brief. Pl.’s Br. at 27; see also Def.-Int.

Resp. at 25 (“[CFBI] also objects to the Commission’s use of import

statistics for the entire review period.”). Plaintiff argues that

although the Commission noted that it considered the most recent

data for November 2005 to January 2006, it “dismissed such data

out-of-hand, asserting that data for such a short time period was

not a meaningful indicator of longer-term trends.” Pl.s’ Br. at

28.

The Court finds that ITC was within its discretion to select

which data to rely upon. It is well established that “because the

statute does not expressly command the Commission to examine a

particular period of time . . . the Commission has discretion to

examine a period that most reasonably allows it to determine

whether a domestic industry is injured . . . .” Nucor Corp. v.
Court No. 06-00125 Page 38

United States, 414 F.3d 1331, 1337 (Fed. Cir. 2005) (internal

citation and quotations omitted); see also Kenda Rubber Indus. Co.

v. United States, 10 CIT 120, 126–27, 630 F. Supp. 354, 359 (1986).

In other words, as long as its decision is explained, the ITC may

rely on the data it considers to be the most reliable. Here, the

ITC found that it was appropriate to base its decision on data for

the entire period of 2005. It explained that due to monthly

fluctuations in Canadian imports from Korea, it found the less

comprehensive data to be unreliable and, thus, examined data for

the complete calendar year.16 See Final Determination, C.R. Doc.

159 at 23. Furthermore, contrary to CFBI’s assertions, the ITC

expressly indicated that it considered all data through January 21,

2006, submitted by Plaintiff. It noted, however, that although it

considered such data, it did “not find partial data for a single

month to be a meaningful indicator of longer-term trends.” Id. at

23 n.155. The ITC, was therefore, rightly within its “broad

discretion in choosing the time frame for its investigation and

analysis . . . .” Nitrogen Solutions Fair Trade Comm. v. United

16
The Court also notes that in its final determination,
the ITC explained that it disregarded the Canadian import data
for December 2005 that the Korean producers had attempted to
submit, because the submission of the proffered information was
not consistent with 19 C.F.R. § 207.68(b) (2000). See Final
Determination, C.R. Doc. 159 at 1 n.2 (“We have determined that
the Korean Producers’ Final Comments contain new factual
information . . . . Accordingly . . . we have disregarded
[certain enumerated sentences] and percentage change figures . .
. .”).
Court No. 06-00125 Page 39

States, 29 CIT __, __, 358 F. Supp. 2d 1314, 1325 (2005).

Therefore, for the foregoing reasons, the Court finds that the

ITC acted reasonably in exercising its discretion by: (1) affording

limited relevance to the Canadian import data; and (2) focusing its

examination of this data for the calendar year 2005, rather than

for the period advocated by CFBI. Accordingly, the Court affirms

the ITC’s finding with respect to the Canadian import data.

C. The ITC’s Determination that Likely Subject Import Volume
Would Not Be Significant Upon Revocation of the Orders is
Supported by Substantial Record Evidence and Otherwise in
Accordance With Law.

Based on the foregoing, the Court finds that the ITC supported

its determination that the volume of cumulated subject imports from

Japan and Korea would not likely be significant if the orders under

review were revoked. In the final determination, the ITC both

reasonably explained, and pointed to substantial record evidence

supporting both its subsidiary conclusions and its ultimate finding

regarding likely volume. The final determination also addressed

Plaintiff’s claims and reflected that the ITC considered the record

evidence contrary to its findings. Accordingly the Court affirms

the ITC’s finding on likely volume, and rejects Plaintiff’s claims

to the contrary. See Altx, Inc., 370 F.3d at 1121 (This 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.”) (internal citation and
Court No. 06-00125 Page 40

quotations omitted).

III. The ITC’s Findings On Likely Price Effects and Likely Impact
Are Supported by Substantial Evidence And Otherwise in Accordance
With Law.

In its final determination, the ITC determined that the

cumulated subject imports were neither likely to have significant

price effects nor likely to have a significant impact on the

domestic industry. See Final Determination, C.R. Doc. 159 at

24–29. Plaintiff challenges the ITC’s conclusions with respect to

likely price effects and likely impact on the domestic industry

only insofar as they incorporate the ITC’s findings that likely

volume effects of the subject imports would not be significant.

See Pl.’s Br. at 32–34 (“[T]he [ITC’s] findings regarding the

likely volume of subject imports . . . are unsupported by

substantial evidence and otherwise contrary to law. For this

reason alone, the Commission’s conclusions regarding price effect

are also unsupported by substantial evidence and otherwise contrary

to law.”). CFBI does not assert any independent challenge to

either the likely price effects or impact. See id.; see also

Def.’s Resp. at 33. As discussed supra, this Court affirms the

ITC’s determination that the likely volume of cumulated subject

imports would not be significant upon revocation of the orders.

Accordingly, because CFBI premises its claim regarding likely price

effects and impact on the ITC’s volume finding, the Court affirms
Court No. 06-00125 Page 41

the latter contested findings as well.

CONCLUSION

In accordance with the foregoing, the Court affirms the

ITC’s final determination. Plaintiff’s motion for judgment upon

the agency record is denied, and this action is dismissed.

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: March 8, 2007
New York, NY
 Slip Op. 07-33

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
COMMITTEE FOR FAIR BEAM IMPORTS, :
:
Plaintiff, :
:
v. :
: Court No.
UNITED STATES, : 06-00125
:
Defendant, :
:
and :
:
HYUNDAI STEEL COMPANY, :
:
Defendant-Intervenor. :
________________________________________:

JUDGMENT

Upon consideration of Plaintiff, Committee for Fair Beam
Imports’ motion for judgment upon the agency record, the
responses thereto, all other papers filed herein, and oral
arguments presented, it is hereby:

ORDERED that the Plaintiff’s motion for judgment upon the
agency record is denied;

ORDERED that the United States International Trade
Commission’s final determination is affirmed; and it is further

ORDERED that this action is dismissed.

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: March 8, 2007
New York, NY