Slip Op. 04-65 UNITED STATES COURT OF I NTERNATIONAL

TRADE

: USIN OR, BEAU

TOR, HAI

RONVI LL E, SOLLAC : ATLANTI QUE, SOLL

AC LORRAIN

E, and : USINOR STEEL

CORP., : : Plaintiff s, : : Before: WALLACH, J udge v. : Court No.: 01-00010 : UNI TED STATE S, : : Defend ant, : : and : PUBLIC V ERSION : BETHLEHEM STEEL

CORP., ISPAT INL

AND, : INC. , LTV ST EEL C O., NAT IONA L ST EEL : CORP., and U.S. STEEL GROUP, : a unit of USX CORP., : : Defend ant-I nterven ors. :

:

[Final Determination is affirmed.] Decided: June 9, 2004 Shearman & Sterling , ( Thomas Bernard Wilner , Chris Ryan ), for Plaintiffs Usinor, Beautor, Haironville, Sollac, Atlantique, Sollac Lorraine, a nd Usinor Steel Corp. Sharret ts, Paley , Carter & Blau velt, P.C. , ( Gail T. Cumins ), for Plaintiffs Thyssen Krupp Stahl AG, Stahlwerke, Bremen GmbH, EKO Stahl GmbH, and Salzgitter AG. Charles Alfred St. Charles , Mary Jane Alves , Gracemary R. Roth-Roffy , Office of the General Counsel, U.S. I

nternat ional Tra de Commission, Washing ton, D.C., for Def

endant. Sk add en, Arp s, S lat e, M eag her & Fl om LLP , ( Stephen P. Vaughn ), for Def endant- Inte

rvenors .1 The Fre nch Produ

cers we re repr esented previous ly by A llan Paul Victor of We il, Gotshal & Manges, L

LP, until the firm terminated its representation on Fe bruary 14, 2003.

2 The court has granted in this case motions for withdraw al of appearance for B ethlehem Steel Corp., Ispat I

nland, Inc., and L

TV Steel Company, I

nc. There have been no motions made to withdra

w these c ompanies

and Natio

nal Steel Corp. as p arties by

counsel. OPINION WALLACH, Judge: I INTRODUC TION

Plaintiff s Usinor, B eautor, Haironville, Solla c Atlanti que, Solla

c Lor raine, a nd U.S. importer Usinor Steel Corporation (collectively “French Producers”) 1 ; Plaintiffs Thyssen Krupp Stahl AG, EKO Stahl GmbH, Stahwerke Bremen GmbH, and Salzgitter ( collectively “G erman Producers”); Defendant-I ntervenors 2 Bethlehem Steel Corp., Ispat I nland, Inc., LTV Steel Company, I

nc., National Steel Corporation, and U.S. Steel Group, filed comments on the United States International Trade Commission’s (here after “Commission” or “ITC”) Remand Determi nation of Septembe

r 17, 2002 (“Reman

d Determ ination” ), on the f

inal dete rmination in the five -y ear adm

inistrativ e revie

w (“Sunse

t Review” ) of antid

umping a nd counte rvailing duty orders on corrosion resistant steel products (“CRCS”) from Fra nce and Germany . The Remand Determination was completed under this court’s ruling in Usinor v. United States , Slip Op. 2002- 70, 2002 Ct. Int’l Trade L EXIS 98 (July

19, 2002) (“ Usinor I ”). Plaintiffs contest the Commission’s determination that revocation of the countervailing duty orders and antidumping duty orders on ce

rtain carbon steel products from specified countrie s, including corrosionresistant carbon steel from France and Germany , would likely lead to continuation or re currence of material injury to an industry in the United States within a reasonably foreseeable time. See3

Certain Carbon Steel Products From Australia, Belgium, B razil, Canada, Finland, France, Germany, Japan, Kor

ea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom , 65 Fed. Reg. 75,301 (Dec. 1, 2000). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000). The court finds the Commission’s findings to be supported by substantial evidence and in accordance w ith the law. II BACKGROUND In Au gust 199 3, the Commi ssion foun d materia l injury or threa t of mater

ial injury to U.S. domestic industry because of less than fair value (“L TFV”) and subsidized imports of CRCS from, among other countries, France and Ge rmany. See Certain Flat-Rolled Carbon Steel Products from Argentina, Australia, Austria, Be lgium, Brazil, Canada, Finland, France , Germany, I

taly, Japan, Korea, Me

xico, the Netherlands, New Zealand, Poland, Romania, Spain, Sweden, and the United Kingdom , USITC Pub. 2664 (Aug. 1993) (“Original Determination”). The Department of Commerce thus published antidumping and counter vailing duty orde

rs covering the subject merchandise fr om these countries. See Countervailing Duty Order and Amendmen

t to Final Affirma tive Counte

rvailing Duty Determi nation: Ce

rtain Stee l Products From France , 58 Fed. Reg. 43, 759 (Aug . 17, 1993) ; Countervailing Duty Orders and Amendment to Final Affirmative Countervailing Duty Determinations: Certain Steel Products From Germany , 58 Fed. R eg. 43, 756 (Aug . 17, 1993) ; Antidumping Duty Orde r and Amendments to Final Determi nations of Sales at Less Than

Fair Va lue: Cert ain Hot-R olled Car bon Steel F lat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Leng th Carbon Steel Plate from France , 58 Fed . Reg. 4 4,169 (Aug. 19, 1993) ; Antidumpin

g Duty Orders a nd Amendm ents to Fi

nal Dete rmination s of Sales

at Le ss3 The Commiss ion’s re view also encompa ssed othe

r carbon steel pr

oducts: c ut-to-le ngth steel plate and cold-rolled carbon steel flat products. 4 Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, Certa in Cold-Rolled CarbonSteel Flat Products, Certain Corrosion-resistant Carbon Steel Flat Products and Certain Cut-toLength Carbon Steel Plate F rom Germany , 58 Fed. Reg. 44,170 (Aug. 19, 1993). On September 1, 1999, the Commission concurrently instituted sunset reviews concerning the countervailing duty and antidumping orde rs on certain carbon steel products from France and Germany

with sunset reviews regarding CRCS from Australia, Cana da, Japan, and Korea. 3 See Carbon Steel Products from Australia, Belgium, Bra zil, Canada, Finland, France, Germany, Japan, Kor

ea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom , 64 Fed. Reg. 47,862 (Sept. 1, 1999). On Decembe r 3, 1999, the Commission decided to conduct full reviews. See Certain Ca rbon Stee l Products

From Aus tralia, B elgium, Brazil, Canada, Finland, France, G ermany, Japan, Kore a, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom , 64 Fed. Reg. 71,494 (Dec. 21, 1999). Under to 19 U.S.C. § 1 675a(a) (7) (200 2), the Co mmission “c umulated ” likely volume and price effects from all the countries unde r review. Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany , Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom , 65 Fed . Reg. 75,301 (D ec. 1, 20 00). The Commission a

lso found t

hat revo king the

subject orders wo

uld

severe ly im

pact the domestic C RCS industry . The Commis sion stres sed that the domestic industry face d significant volume and price declines for its product g iven the determination that importing nations ha

d high le vels of e xcess cap acity

coupled w

ith cost ma

rgins th at nece ssitate5

maximum employment of capacity

. On November 2, 2000, the Commission determined that revoking the antidumping and countervailing duty

orders on CRCS from Australia, Canada, France, Ge rmany, Japan, and Kore a would cause the continuation or recurrence of material injury to U.S. domestic industry within a reasonably

foreseeable time. See Certain Ca rbon Stee l Products

From Aus tralia, B elgium, Brazil, Canada, Finland, France, G ermany, Japan, Kore a, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom , 65 Fed. Reg. 75,301 (Dec. 1, 2000) (“Notic e of Commis sion’s De terminat ion”); Certain Carbon Steel Products From Australia, Belgi um, Bra zil, Canada , Finland , Franc e, Germa ny, Japan, Kor

ea, Mexic o, The Ne

therlands, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom , USITC Pub. No. 3364. (Nov. 27, 2000) (“Review Determination”). The French and German produc ers and exporters of the subject merchandise appealed the Commission’s Review Determination to this Court. The court in Usinor I

remande d and req

uired the Commission to

reexamine

its “no disc ernible adverse impact” f

indings w ith respe ct to Fre

nch and G erman imp orts and t o reeva luate its cumulation, likely volume, likely price, and likely impac

t findings. Familiarity w

ith the decision in Usinor I

is presumed. Presently befor

e the court is the ITC’s Remand De termination in which the Commission affirme d its views

and dete rmined tha

t the rev ocation o f the ant idumping and coun tervaili ng duty orders on corrosion-resistant steel from Fra nce and Germany

would be likely to lead to the continuation or recurrence of mater ial injury to an industry

in the United States within a reasonably

foreseeable time. The court finds that the ITC has made its Remand Determination in accordance with law.6 III THE COURT’S INSTRUCTIO NS AND P ARTIES’ AR

GUMENTS The court instructed the ITC to addr ess the French and German produc ers’ evidence “rega rding c apacity

utilization a

nd the impa

ct of the EU”; “di scuss the

key issues in it s determination”; and “discuss its obligations under the Antidumping Agr eement vis-à-vis 19 U.S.C. § 1675a(a)(7) and must fully explain whether its position can be reconciled with, or unavoidably contra

dicts, the Antidumping Agreement.” Usinor I , Slip Op. 2002-70 at 44-45. The Plaint

iff Ger man Produc ers arg

ue that th e IT C’s Remand Determ ination fa ils to address adequately

the court’s concerns as to deficiencies in the I TC’s Original Determination; improperly ig

nores evidence supporting the German Produc ers’ position; and does not direct the court's attention to sufficient evidence to support a conc lusion that revocation of the antidumping orders on corrosion resistant carbon steel flat products from Germany is likely to have a discernible adverse impact on the domestic industry

. The Plaintiff French Producers arg ue that the ITC’s determination that the F rench Producers have the ability to increase exports to the United States is not supported by substantial evidence; the ITC ag ain failed to show that there is a ‘likelihood’ to increase exports to the United States; and the Commission did not follow the court’s instructions with regards to the proper t reatmen t of U.S. in

ternational oblig ations. The Def endant- Inte

rvenors argue that the I TC corre ctly

executed the cumul ation ana

lys is of Fren ch and Ge

rman impor

ts in acc ordance

with U.S. st

atute an d U.S. inte

rnationa l obliga tions; the Commission’s findings concerning no discernible adverse impact as well as EU integration are supported by

substantial evidence and are in accorda nce with the law.7 IV STANDARDOF REVIEW In re viewing final determinat

ions in ant

idumping duty investig ations, th e court w ill hold unlawful those agency

determinations that are “unsupported by substantial evidence on the record, or otherwise not in accordanc e with law.” 19 U.S.C. § 1516a(b)(1)(B)(I ) (2000). Substantia

l evidenc e is “such releva nt eviden ce as a r easonab le mind mig

ht acce pt as ade quate to support a conclusion.” Consol. Edi son Co. of N ew York v . NLRB , 305 U.S. 1 97, 229, 59 S. Ct. 206, 83 L . Ed. 126 ( 1938); Matsushita Elec. Indus. Co., L td. v. United States , 750 F.2d 927, 933 (Fed. Ci r. 1984). The cour

t takes int o accou nt the ent ire rec ord, “inc luding w

hat fair ly d etracts from the substantiality of the evidenc e.” Atlantic Sugar, Ltd. v. United States , 744 F.2d 1556, 1562 (Fed. Cir. 1984). Thus, the court will affirm the ag ency’s f actual determinations so long as they are reasonable and supported by the record. Id. In its analysis, the court may not rew eigh the evidence or substitute its own judgment for that of the age ncy. See Nippon Steel Corp. v. United States , 301 F. Supp. 2d 1355, 1360 (CIT 2003). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative a gency 's finding from being supported by substantial evidenc e. Consolo v. Fed. Mar. Comm’n , 383 U.S. 6 07, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966). In reviewing

an agency ’s construction of a statute, this court undertakes a two-step analysis established by

the Supreme Court in Chevron U .S.A., I nc. v. Na t. Res. De f. Counci l, Inc. , 467 U.S. 8 37, 842-4 3, 104 S. Ct. 2 778, 81 L . Ed. 2d 694 (1984). F irst, the c ourt must consider “whether Congress has dire ctly spoken to the prec ise question at issue.” Id. at 8 42. If so, this court and the agency “must give effect to the unambiguously expressed intent of Congress.” Id. at 843. If, however, Cong ress has not spoken directly on the issue, this court8

looks at whether the agency ’s interpretation “is based on a permissible construction of the statute.” Id. To survive

judicial s crutiny

, an ag ency ’s constr

uction ne ed not be t

he only reasonable interpretation or even the most rea sonable interpretation. Zenith Radio Corp. v. United States , 437 U.S. 4 43, 450, 98 S. Ct. 2441, 5 7 L. E d. 2d 337 ( 1978). A c ourt must de fer to an agency ’s reasonable interpretation of a statute eve n if the court might have preferre d another. Id. “Deference to an ag ency’s statutory interpretation is at its peak in the case of a court’s re view of Commerce’s interpretation of the antidumping laws.” Koyo Seiko Co. v. United States , 36 F.3d 1565 , 1570 (F ed. Cir. 1 994); Daewoo Elecs. Co. v. United States , 6 F.3d 1511, 1516 (Fed. Cir. 1993), cert. denied , 114 S. Ct. 2672 (1994). V ANALYSIS A The Commission’s Decision to Cumulate the F rench and German Producers’ Subject Imports Is Supported by Substantial Evidence Because i ts Finding s of Likely Dis cernible Adverse Impact Are Supported by Substantial Evidence and Are In Accordance with Law The Commission argues that cumulation is discretionary in five-yea

r reviews. The Commission states that it may exercise its discretion to cumulate only if the reviews are initiated on the same date and it determines that subject imports are likely to compete with each other and the U.S. domestic like product. The I TC cannot

cumulate if the sub ject impor

ts are lik ely to have no

discern ible adve rse impact on domestic industry upon revoc ation. In this case, the I TC did make a determination of likely discernible adve

rse impact by CRCS imports from Franc e and Germany . Furthermore, the ITC found reasonable ove rlap of competition among subject imports and the domestic like product a nd no sig nifican t differ ences in condition s of compe

tition amon

g the sub ject cou ntries.9

ITC Remand Results at 3. Thus, the I TC says it cumulated imports from Australia, Cana da, France, Germany

, Japan, and Korea. The Defendant-I ntervenors argue support the Commission’s findings regarding cumulation and claim that they are supported by

substantial evidence. The ITC’s Sunset Review Procedures The ITC is required to conduct sunset r eviews every

five yea rs after the publication of an antidumping duty order

or a previous sunset review. See 19 U.S.C. § 1 675(c)( 1); Ugine- Savoie Imphy v. United States , 248 F. Supp. 2d 1208, 1210 (CIT 2002). I n sunset reviews, the ITC “shall determine whether revocation of an or der . . . would be likely to lea d to continuation or recurrence of material injury within a reasonably

foreseeable time.” 19 U.S.C. § 1675a(a)(1); Usinor Industeel, S.A. v. United States , Slip Op. 2003-118 at 4, 2003 Ct. Int’l. Trade L EXIS 116 (Sept. 8, 2003). In making its material injury determination, the ITC, in its discretion, may cumulatively

assess the volume and effect of imports of the subject merchandise from all countries with respect to which re views under section 751(b) or (c) wer e initiate d on the sa

me day , if such i

mports wou

ld be like ly to compete with each other and with domestic like products in the United States market.

19 U.S.C. § 1 675a(a) (7); Nippon Steel Corp. v. United States , 30 1 F. Su pp. 2d 1 355 , 13 60 ( CIT 2003); see also Eveready

Battery Co. v. United States , 77 F. Supp. 2d 1327, 1331 (CIT 1999); Usinor Industeel, S.A. v. United States , Slip Op. 2002-39 at 10, 2002 CIT LE XIS 41 (Apr. 29, 2002). The ITC, however, “ shall not cumulatively assess the volume and e ffects of imports of the subject merchandise in a case in which it determines that such imports ar e likely to have no discernible adverse impact on the domestic industry .” 19 U.S.C. § 1675a(a)(7). Thus, the10

Commission cannot “cumulate imports from any countr y if those imports are likely to have no discernible adverse impact on the domestic industry .” Uruguay Round Agreements Act (“URAA”), Statement of Administrative Action, accompany ing H.R. No. 103-826 at 883 (“SAA”). Although sunset reviews were added to the U.S. tra de laws in 1994 by Cong

ress, the ITC exercised discretion with regards to cumulation before it had a statutory basis to do so. Under the Trade and Tariff Act of 1984, Pub. L . No. 98-573, § 612(a)(2), 98 Stat. 2948, 3033 (Oct. 30, 1984) which first established guidelines for cumulation for the I TC, ITC discretion was extended to the ef fects of “imports f

rom vario us countr ies that e ach acc ount indivi dually for a ve ry small percentage of total market pe netration, but when combined may cause material injury .” Neenah Foundry Co. v. United States , 155 F. Supp. 2d 766, 771 (2001) (quoting H.R. Rep. No. 98-725, at 37 (1984)). With further Congressional refinement in 1987, the intent behind cumulation remained the same: “competition from unfairly traded imports from several countries simultaneously often has a ha mmering effect on the domestic industry [that] may not be adequately

addressed if the impact of the imports are [sic] analy zed separately

on the basis of their country of or

igin.” Id. at 772 (quoting H.R. Rep. No. 100-40, part 1, at 130 (1987)). The URAA cite d cumulat

ion as a “ critica

l compone

nt of U.S. a

ntidumping

and coun tervaili ng duty law,” sta ting tha t “domesti c industr

y c an be inju

red by a partic ular volu me of impor

ts and the ir effects regardless of

whether those imports came from one source or many sources.” Id. at 772 (quoting H.R. Doc No. 103-316, vol. I, a t 847 (1994)). In Neenah Foundry , the court held that the underlying

purpose of cumulation thus did not change in the URAA, that the policy reasons (that cumulating small amounts of imports that collectively can hurt domestic industry) r emain,11

allowing the ITC discretion as to wha t it cumulates. Id. at 772-73. To ensur e that the no discer nible adv erse impa

ct provis ion is satis fied, the ITC normally considers the “likely volume of the subject imports and the likely impact of those imports on the domestic industry within a reasona bly foresee able time.” Usinor Industeel, S.A. v. United States , Slip Op. 2002-39 at 11-12, 2002 Ct. Int’l. Trade L EXIS 41 (April 29, 2002). The I TC must then also find that a “reasonable overlap of c ompetition” exists between imports from different countries. Id. at 10- 11 (ci ting Wieland Werke, AG v. United States , 13 CIT 561, 563 (1989)). Generally , the ITC needs to consider whe ther the similarities in the conditions of competition would prevail if the findings and orders are revoked. Id. at 11 ( citi ng Certain Steel Wire Rope from Japan, Korea, and Mexico , USITC Pub. 3259, INV . Nos. 731-TA-547, at 11 (Dec. 1999) (five-ye ar review)). Usinor I held that the ITC’s determination with reg ards to the conditions of competition was supported by substantial evidenc e. 1 The Commission Applied the “No Discernible Adverse Impact”

Standard In Accordance with the Statute The Court

request ed the ITC upon re

mand to ar

ticulate the “no di scernib le adverse impact” standard in five y ear reviews and the standard’s consistenc y with the Gener

al Agreement on Tariffs and Trade 1994 (“GATT 1994 ” ) and the Agreement on I mplementation of Article VI of GATT 1994 (“AD Agree ment”). Usinor I , Slip Op. 2002-70 at 45.

The Commission’s Finding that A Strict Quantitative Negligibility Analysis Is Not Required under U.S. Statute in Five-year Reviews Is Supported by Applicable Law The Commission says that a strict quantitative neg ligibility analy sis is not required or permi tted u nder U. S. la w for fi ve-year rev iews. First , the ITC argues t hat, f rom a p lain l anguage4 (A) I n gene ral. (I)Less than 3 per

cent. Exce

pt as prov ided in cl auses (i i) and (iv ), imports from a country

of merchandise corresponding to a dome stic like product identified by the Commission are “neg ligible” if such imports account for less than 3 perce nt of the v olume of a

ll such mer

chandise imported i

nto the United States in the most recent 12-month period for which data are availab le that pr

ecedes

– (I) the filing of the

petition under section 702(b) or 732(b), or (II ) the initiation of the investigation, if the investigation was initiated under section 702(a) or 732(a).

5 The ITC notes that pre-URAA the treatment of negligible imports did not include a numerical criteria, but instead involved the consideration of fa ctors such as market share, the general frequency

of sales transactions, and price sensitivity of the domestic market. See ITC Remand Re sults at 8; 1 9 U.S.C. § 16 77(7)(c )(v) (1 994); Neenah Foundry , 155 F. Supp.2d at 766. 12 standpoint, the structure of 19 U.S.C. § 1677(24) (2002) 4 which defines “negligible” a pplies the term to original antidumping and countervailing duty investigations under 19 U.S.C. §§ 1671 & 1673 (2002), but does not refer to five-y ear reviews under 19 U.S.C. § 1675(c). I TC Remand Results at 5; Respons e of Def

endant U nited State s Inte

rnationa l Trade C ommission to

Plaintiff s’ Comments on Remand Determination (“Defendant’s Response”) a t 2-3. Second, while the statute gives no g

uidance as to wha

t the I TC needs t

o conside r to fulfi ll the “no

discern ible adverse impact” standard, the Commission argues that 19 U.S.C. § 1675a (a )(7) makes contingent the cumulation prohibition in five year reviews on a determination that the imports are likely to have “no disce

rnible adverse impact” on domestic industry . Neither the URAA SAA nor any Cong

ressional documents definitively de fine “no discernible adverse impact” as a strict negligibility te st; instead, it is more of a general standard. 5 ITC Remand Results at 7-8. The German Producers state that they do not challenge the I TC’s conclusion that a strict13

quantitative negligibility

test is not required for five-y ear reviews under U.S. statute and that the “no discernible adverse impact” standard doe s not equate to a strict numerical test. Comments of German Producers at 2, n. 6. This court in Usinor I , Slip Op. 2002-70 at 11 stated that neither 19 U.S.C. § 1675a(a)(7) nor the URAA, Pub. L. No. 103-465, §220(a), 108 Stat. 4809, 4858 (1994) provided guidelines or specific numeric boundaries for defining “no discernible adverse impact.” Furthe rmore, the Senate Re port No. 1 03-412 a

t 51 (1994)

concer ning the URAA stat

es that [t]he Committee believes that it is appropriate to preclude cumulation where imports are likely to be neg ligible. However, the Committee does not believe that it is appro priate to adopt a st

rict nume rical te st for determining

negligibility because of the extraordinary difficulty in projecting

import volumes into the future with precision. Accordingly , the Committee believes that the "no discernible adverse impact" standard is appr opriate in sunset reviews. While the c ourt has f

ound no ind

ication o f a part

icular n eglig ibility

require ment in the

U.S. statute, the Commission’s argument that a negligibility analysis is “not permitted,” not just “not required,” by

law is overly broa

d. The URAA legislative history language refe

rred to above states that the ITC must consider closely situations in which the level of imports is minuscule, even though it rejects an explicit quantitative test. The Commission’s determination that U.S. law does not require

a negligibility

analysis is thus supported by substantial authority and persua sive reasoning.

The ITC’s Assertion that the No Discernible Adverse Impact Standard Applied without a Numer ical Negl igibility St andard Is Co nsistent wit h the WTO Ant idumping Ag reem ent

The I TC argu

es that the

issue bef ore the Co

urt is whe ther its a ctions ar e consist ent with U.S. law. It asserts that the URAA is not self-executing and that 19 U.S.C. § 3512(a) states that6 Murray v. Schoone

r Charmin

g Betsy , 6 U.S. 64, 188, 2 Cranch 64, 2 L. Ed. 208 (1804). The Charming

Betsy case states that “[i]t has also been observed that an act of Congr ess ought never to be construed to violate the law of nations if any other possible construction remains.” See also Federal-Mogul Corp. V. United States , 63 F. 3d 1572, 1581 (Fed. Cir. 1995); Jane A. Restani & Ira B loom, Interpre ting Int ernati onal T rade S tatut es: Is th e Char ming Be tsy Sink ing? , 24 Fordham Int’l L .J. 1533 (2001).

7 Article 3.3 provid

es: Where imports of a p roduct f rom more t

han one c ountry

are simul taneousl y subject to antidumping investigations, the investigating authorities may cumulativ ely

assess th e effe cts of suc

h imports on

ly if they determine that (a) the margin of dumping

establish ed in rel ation to the imports fr

om each c ountry

is more than the de minimi

s as defined in paragraph 8 of A rticle 5 and the volume of imports from each country is not negligible and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product.

8 Article 5.8 provid

es: An application under paragraph 1 sha ll be rejected and an investigation shall be terminat ed prompt

ly a s soon as th e author

ities conc erned a

re satisf ied that there is not suffic ient evid

ence of either d umping or

of injury to justify procee ding with the case. There shall be immediate termination in cases whe re the authorities 14 U.S. domestic law prevails in event of conflict with the World Trade Org anization (“WTO”) Agreements. While conceding that judicial pre cedent is mixed because some courts have applied

a Chevronanaly

sis to ana lyze the rea sonableness of the agenc y’ s interpr

etation o f U.S. international obligations and other courts have applied the Charming Betsy

6 standard, the Commission sa

ys i t is unbound

by t hese pre cedents

because the statut ory langua ge at is sue is facially c lear. Alternately, the I

TC argues that, if the court reache s the issue of its interpretation of the consistency of U.S. statute a nd the WTO AD Agreement, neither the U.S. statute nor the WTO AD Agreement, specifically Articles 3.3 7 , 5.8 8 , and 11 9 , r eq ui re a q ua nt it at iv e n eg li gi bi li tydetermine that the margin of dumping

is de minimi

s , or that the volume of dumped imports, actual or potential, or the injury , is negligible. The margin of dumping shall be considered to be de minimi s if this mar

gin is le ss than 2 pe

r cent, expresse d as a per

centag e of the e

xport price . The volu

me of dump ed imports shall nor mally be reg arded a s neglig

ible if the volume of

dumped imp orts from

a particular country

is found to account for less than 3 per cent of imports of the like product in the importing Member, unless countries which individually account for less than 3 per cent of the imports of the like product in the importing Member collectively ac count for more than 7 per cent of imports of the like product in the importing Member.

9 Article 11, entitled Duration and Review of Anti-Dumping Duties and Price Underta kings, p rovides: 11.1 An anti-dumping duty sha ll remain in force only

as long as and to the extent ne ce ss ar y to co un te ra ct du mp in g w hi ch is ca us in g i nj ur y. 11.2 The authorities shall review the need for the continued imposition of the duty , where

warran ted, on the ir own init

iative or , provide d that a r easonab le period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by

any intereste d party which submits positive information substantia ting the need for a revie w. In tereste d partie s shall ha

ve the ri ght to request the authorities to e

xamine whe

ther the continue d imposition

of the dut

y is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty

were removed or varied, or both. I f, as a result of the review under this paragraph, the authorities deter mine that the anti-dumping duty is no lo ng er wa rr an te d, it sh al l b e t er mi na te d i mm ed ia te ly. 11.3 Notwithstanding the provisions of paragraphs 1 and 2, a ny definitive anti-dump ing duty

shall be te

rminated on a date not later than five ye ars fro m its imposition (or from the date of the most recent review under pa ragraph 2 if that review has covered both dumping and injury , or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated re quest made by or on be half of the domestic industry within a r easonab le perio d of time pr ior to that date, tha t the expiry

of the dut

y would be likely to lead to continuation or re currence of dumping and injury . The duty may remain in force pending the outcome of suc h a review. 11.4 The provisions

of Artic le 6 reg arding

evidenc e and pro cedure

shall app ly to any revie w carried out under this Article. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. 1511 .5 Th e p ro vi si on s o f t hi s A rt ic le sh al l a pp ly mutatis mu tandis to price undertakings accepted under A rticle 8. (internal citations omitted). 16 analysis in five y

ear reviews. I

n discussing Article 3.3, the Commission says that the provision only applies to origina

l investigations, not five-ye ar reviews. ITC Remand Re sults at 17. Furthermore, the Commission claims that Article 11 does not mandate explicitly or implicitly the strict quantitative requirements of Article 5.8 and that Article 5.8 only applies to original investigations as well. ITC Remand Results at 18. Apart f rom the text of the AD Agreement, the ITC points to the general pur pose of five-y

ear reviews in examining the likely future volume of imports that have been restrained for the past five y ears and their likely

future impact on an industry that has been unde r protection of the remedial order. I TC Remand Results at 19. The ITC st ates tha t [t]he differences in the nature and practicalities of the two ty pes of inquiries demonstrate that the requirements for the two cannot be identica l. It would not serve the distinct purpose of each ty pe of inquiry to impose quantitative negligibility r

equirements applicable in the original investigation in a five -year review, which starts from the premise that the volume of subject imports may have de crease d as a re sult of the antidumpin

g duty order. Si milarly, it would appear unlikely that the n egotia

tors would

have re quired a

strict qua ntitative test in review proceedings that are inherently pre dictive and speculative and require the decision-maker to engag e in a counterfactual analy sis. ITC Remand Results at 20. I n its Reply Brief, the I

TC also discusses a WTO Appellate Body decision which, overturning a WTO Panel decision, found that “orig inal investigations and sunset reviews are distinct processes with different pur poses” and that the de minimi s standard applied in original investigations did not apply to five-yea

r sunset reviews. Defendant’s Reply at 5-6 (ci ting United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Flat17

Steel Products from Germany , WT/DS213/AB/R, AB-2002-4 ¶ 87, 64-65 (Nov. 28, 2002) (hereinafter “ Corrosion -Resista nt Flat Ste el Produc ts from Ge rmany , Report o f Appella te Body”)). The ITC also provide d, in a submission to the court on May 24, 2004, prior to oral argument, the WTO Panel Report in United States – Sunset Review of Antidumping Duties on Corrosion-Resistant Carbon Flat Steel Products from Japan , WT/DS244/R (Aug. 14, 2003) (hereinafter “ Sunset Review of Corrosion Resistant Carbon Flat Steel from Japan, Report of Panel ”), and Appellate Body Report in United States – Sunset Review of Antidumping Duties on Corrosion-Resistant Carbon Flat Steel Products from Japan , WT/DS244/AB/R (Dec. 15, 2003) (hereinafter “ Sunset Review of Corrosion Resistant Carbon Flat Steel from Japan, Report of Appellate Body

”), which also support this proposition. The French Producers arg ue that the ITC incorrectly states that there is mixed judicial preced ent on the relation ship betwe en U.S. la w and U.S. interna

tional obli gations . They

claim that the Co mmission is r

equired to resor t to extrinsic

authority when a st

atute is a mbiguous ; this, they say , might require a resort to legislative history of the U.S. statute or even the WTO Agree ments whic

h “serve as a kind o f legis lative his tory to the URAA .” Respon sive Comme nts of Plaintiffs Usinor, Beautor, Haironville, Sollac L orraine, and Usinor Steel Corp. to the Remand Determination of the Interna tional Trade Commission (“Comments of French Producers”) at 14. They further state tha t Charming

Betsy and its pr

ogeny of case s requir

e the I TC to inter

pret U.S. statutes i n confor mity with inter

national obligat ions in the

absent of clear Congress ional inte

nt to the contrary

. Id. at 14-15. The German Producers claim that the ITC’s conclusion on this issue is contrary to the Court’s instructions in Usinor I because (1) this c ourt told the Commission that it cou

ld not just18

stress the primacy of

domestic law in event of conflict with international law and (2) the existence of judicia

l prece dent conc erning

the rela tionship be

tween the AD Agr eement a nd U.S. law. Comments of Plaintiffs German Producers of Corrosion Resistant Carbon Steel Flat Products on the USITC’s Remand Determination of September 17, 2002 (“Comments of German Producers”) at 3. They

argue that judicial precedent c ited by the I TC as well as the court’s decision in Usinor I

require the Commission and court to avoid construing U.S. law to conflict with U.S. international obligations. Id. at 4. The German Producers further a rgue that the AD Agreement “unambiguously ” applies the 3/7 % negligibility standard to Five-Year Reviews because: (1) Article 11.3 provides that AD Orders ‘shall be ter minated’ unless the authoriti es deter

mine that t

he ‘expir y of the duty would be l ikely

to lead to continuation or recurrence of dumping a nd injury ;’ (2) Note 9, Article 3, provides that ‘ Under this

Agreem ent , the ter

m injury , ‘unless

otherwis e specif

ied . . .sha

ll be interpreted in accord ance with th is Artic le ;’ (3) Article 3.3 provides that cumulation is allowed only when ‘the volume of imports from each country is not negligible ;’ and (4 ) Article 5.8 defines ‘ negligible ’ as ‘ normall y ’ meani ng ‘ less than 3 perc ent

of imports of the like product in the importing Member.’ Comments of German Producers at 4 (emphasis in original). They also cite United Sta

tes – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS/213/F, Report of Panel at 177, para. 8.67 (July 3, 2002) (he reinafter “Corrosion Resistant Carbon Steel Flat Products from Germany , Report of Panel ”), whic h stated that just bec ause countervailing duties are five y ears old does not mean that the de minimi s standard is suspended. On this bas is, the Ge

rman Prod

ucers a rgue that the ide

ntical ra tionale g overns th e negli gibility standard in Sunset Reviews. Comments of German Producers at 4-5. The Def endan t-Interv enors argue th at the ITC has p roperl y found th at the plain langua ge of 19 U.S.C. § 1675a(a)(7) bars a quantitative neg ligibility analy sis and U.S. law and the WTO10 In addressing “ these possibilities,” the Commission is referring to its discussion on the te rm “s ha ll no rm al ly” in th e A D A gr ee me nt : “ It i s p os si bl e t ha t t hi s i nt er pr et at io n o f “ no rm al ly” to mean “generally,” may ser ve as a model for apply

ing the Antidumping Agreement’s test for negligibility . Howeve

r, other than the SA

A’s hand ling of t he “normally

” langu age in t he home ma rk et sa le s c on te xt , t he co ur t i s u na wa re of an y au th or it y th at in di ca te s t he “s ha ll no rm al ly” language is permissive, nor did the parties pr ovide such authority. I

n fact, the reverse may

also be true, suc h that the Antidumpin

g Agr eement’ s numeric al test for negli gibility is absolute . In th

is event, the Commission’s position would directly oppose the Antidumping Ag reement.” Usinor I , Slip Op. 02-70 at 17. 19 Agree ment do not

conflic t on this poin

t. Comments

of Defe ndant-I nterven ors at 1. T

hey claim the ITC correctly

determined that the quantitative negligibility provisions of the WTO AD Agreement, referr

ed to by the Ger

man Producers, only a

pply to original investig ations. Comments of Defendant-Inter venors at 2. The domestic industry states that the WTO Panel decision referred to by

the German Producers, Corrosion-Resistant Flat Steel Products from Germany, Re

port of Panel , was reversed by the WTO Appellate Body decision mentioned by the ITC. Co mment s of De fendan t-Interv enors at 5 (ci ting Corrosion -Resista nt Flat Ste el Products from Germany , Report of Appellate Body , ¶ 87). In Usinor I , the cour

t ordere d that [o]n remand , the Commis sion must ad dress the se possibi lities as p art of its overall duty to administer the antidumping laws in ac cordance with its international obligations. The Commission may ultimately conclude that departing from the Antidumping Agreement’s numerical test is consistent with the Antidumping Agreement based upon the “shall normally ” language. I

n this event, the Commission must discuss and explain how and why the numerical test is not applica ble in this i

nstance . In the altern

ative, th e Commission

must furth er discu ss how and why its position is irreconcilable w ith the Antidumping Agreement and the impact of the SAA on the proper interpretation of the statute. The Commission may not simply

disregard the Antidumping Agr eement by loosely

invoking court decision s that stre ss the primacy of domest

ic law wh ere a c onflict w ith international law arises. Rather, it must first expressly ide ntify and analy

ze such a conflic t before

rely ing on tho se decis ions. Usinor I , Slip Op. 02-70 at 18. 10 Here, the IT C has cons trued the U.S. statu

te and its11 The Charming Betsy doctrine is not applicable here because a s construed there is no inconsistency betwe en the U.S. statute and the WTO Agreement.

12 On the re lation of WT O adjudic atory authority to statutor

y in terpretation, se e Restani

& Bloom, supra n. 9, at 1544-47.

13 At oral argument, I TC counsel argued that “neither the WTO Ag reements nor any reports of either dispute resolution panels or the Appellate Body interpreting the WTO Agreements have any

bearing in this litigation.” When the court questioned the ITC regarding the supplemental opinions and WTO documents it had provided prior to oral argument, including inter alia Hyundai Elecs. Co. v. United States , 23 CI T 302 (199 9); PAM, S.p.A. v. United States , 265 F. Sup

p. 2d 1362 ( CIT 20 03); Corus Staal BV v. United States , 25 9 F. Su pp. 2d 1 253 (CIT 2003); Timken Co. v. United States , 240 F. Supp. 2d 1228 (CIT 2002), the ITC said that it was ju st res pon di ng t o t he “ arg um ent s ra is ed b y the Ger man res pon den ts ” an d t hat it kno ws “ th e CIT and the F ederal

Circuit ha

ve in fact looked to

both disput

e panel r eports a s well as A

ppellate Body re ports in order to confirm their analy sis” and thus it felt that it was its “obligation to make . . . available to the court” such materials. When the court stated that it appea red that the ITC was citing WTO panel reports as precedent, the I TC said that “to the contrary ; that was never our intention. Our view is very simple that there is absolutely no need to look to either the WTO Agreements or the WTO decisions.” The court disagrees. I

ts opinions may be informed by WTO documents. Hy

undai Ele cs. Co. , 23 CI T at 312; PAM, S.p.A. , 265 F. Su pp. 2d at 1 372; Corus St aal BV , 259 F. Supp. 2d at 1265; Timken Co. , 240 F. Supp. 2d at 1238-1239. While the court understands fully that WTO Agreements are not self-e xecuting and that WTO Panel and Appellate Body decisions are not 20 interpretation of the no discernible adverse impact standa rd consistently with the WTO AD Agree ment. 11 The Commission reasonably arg ues that the relationship of Articles 3.3, 5.8, and 11 show that a strict quantitative negligibility requirement is applicable to original investigations and not five-ye ar sunset reviews. Article 11 which, among othe r things, concerning the revie w of antidumping duties refers to a number of other ar ticles in the AD Agreement, but never references the neg ligibility requirements in Article s 3.3 or 5.8. This seemingly e xplicit omission is telling; the lack of an explicit cross reference sug gests that the requirement does not exist. The court finds persuasive 12 fo r t he pr op os it io n t ha t t hi s o mi ss io n d oe s n ot su pp ly a negligibility r

equirement, the reasoning 13 of the WTO Appellate Body decisions in Corrosion-stare dec isis in United States’ courts, such authority a s well as treatises, law review articles, and

commentaries; indeed any unforeclosed source of valuable ana lysis, are matters a

court can examine for persua sive rati onale. N othing in the law f oreclos es it.

14 Article 11.9 provides: An application under paragraph 1 sha ll be rejected and an investigation shall be terminat ed prompt

ly a s soon as th e author

ities conc erned a

re satisf ied that there is not sufficient evidence of either subsidization or of injury to justify proceeding with the case. There shall be immediate termination in cases whe re the amount of a subsi dy i s de minimi

s , or where the volume of subsidized imports, actual or potential, or the injury, is negligible. For the purpose of this parag raph, the amount of the subsidy shall be consider ed to be de minimi

s if the sub sidy

is less than 1 per cent ad v alorem.

15 Article 21.3 provides: Notwithstanding the provisions of paragraphs 1 and 2, a ny definitive counter vailing duty shall be te

rminated on a date not later than five ye ars fro m its imposition (or from the date of the most recent review under pa ragraph 2 if that review has cover

ed both sub sidization a

nd injury , or unde r this par agrap h), unles s the authorities determine, in a review initiated before that da te on their own initiative or upon a duly substantiated reque st made by or on beha lf of the domestic industry within a reasona ble period of time prior to that date, that the expiry of the duty

would be likely to lead to continuation or re currence of subsidizati on and inju

ry . [Footnote : “When the amount of

the count ervailin g duty is assessed on a retrospective basis, a finding in the most rec ent assessment procee ding tha

t no duty is to be lev

ied shall n

ot by itself re quire the

authoriti es to terminate the definitive duty.” ] The duty may remain in force pending the outcome of such a review. 21 Resistant Flat Steel Products from Germany , Report of Appellate Body and Sunset Review of Corrosion Resistant Carbon Flat Steel from Japan, Report of Appellate Body . Although the Corrosion-Resistant Flat Steel Products from Germany concerns subsidies and countervailing duties, Articles 11.9 14 and 21.3 15 of the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) c orrespond closely with Articles 5.8 and 11.3 of the AD Agreement. The WTO Panel had rea d the SCM Agreement to include the de minimi s requirement22

in five-y ear re views. Th e Appella

te Body revers ed, noting

that Artic le 21.3 do es not explic itly mention that the de minimi s standard of Article 11.9 be applied to five-y ear reviews. The Appellate Body

further stated [w]e have previousl

y ob served t

hat the f act that a particu lar trea ty provision is ‘silent’ on a specific issue ‘must have some meaning.’ I n this case, the lack of any indication, in the text of Article 21.3, that a de minimi s standard must be applied to sunset reviews serves, at least at first blush, as an indication that no such require ment exists. Corrosion-Resistant Flat Steel Products from Germany , Report of Appellate Body , ¶ 65. While the Appellate Body

stated that the silence did not exclude the inclusion of a de minimi s requirement through implication, it found through its analy sis of the text of the SCM Agreement that such a requirement could not be implied for five-y ear reviews. Similarly , in Sunset Review of Corrosion Resistant Carbon Flat Steel from Japan, Report of Panel , the WTO Pa nel said that [o]n its face, Article 11.3 does not provide, either explicitly or by way of re fe re nc e, fo r a ny de minimi s standard in making the likelihood of continuation or recurrence of dumping de terminations in sunset reviews. Therefore, Article 11.3 itself is silent as to whether the de minimi s standard of Article 5.8 (or any other de minimis standard) is applicable in sunset reviews. ¶ 7.67 (internal citations omitted). While the negligibility issue was not appealed in Sunset Review of Corrosion Resistant Carbon Flat Steel from Japan, Report of Appellate Body , the Appellate Body

does draw a distinction between the nature of original investigations and sunset reviews. See Sunset Review of Corrosion Resistant Carbon Flat Steel from Japan, Report of Appellate Body , ¶¶ 106-07. This reasoning is persuasive beca use original investigations and five-y ear re views ar e distinct in nature and have differe nt purpose s: the for

mer cont ains a negligibility

require ment bec ause it is r

equired to y ield pre cise re sults, whil e the latt er is predictive and speculative which requires a c ounter-factual analysis.16 The court in Usinor I ordered that [r]esort to dictionary sources Webster’s Dictionary and B lack’s Law Dictionar y demonstrates that “likely” is tantamount to “probable,” not merely “possible.” See Webster’s Ninth New Collegiate Dictionary, at 692 (1990); Black’s L aw Dictiona ry (6th ed., 13th reprint) at 834 (19 98). Unde

r the stan dard ar ticulate d in Chevron , the court concludes that the meaning of the ter m is clear and terminates its inquiry there. Certainly, as the SAA say s, multiple “likely” outcomes are possible under the statute. The Commission, however, must demonstrate that its interpretation of the evide nce is one of the m. The Comm issi on, re lying sol ely on the above passa ge in support of its meager discussion of the Plaintiffs’ evidence, does not demonstrate how its understanding of the impact and scope of potential future 23 It, thus, appears that the Commission’s interpretation of U.S. law as not re quiring a strict quantitative negligibility

analysis is not inconsistent with the WTO AD Agre ement. The ITC’s determination that U.S. law and the WTO AD Agreement ar e not in conflict is thus in accordance with the law. 2 The ITC’s Findings of Likely Discernible Adverse Impact with Respect to French and German Subject Im ports Are Supported by Substantial Evidence and Are in Accordance with Law In Usinor I , this court instructed the ITC to reconsider its no discer nible adverse impact finding s rega

rding su bject imports from France a nd Germa ny, particu

larly its finding s of likely volume inc

reases . The cou

rt requir ed the Comm

ission to ta

ke into ac count par

tial y ear 2000 data on capacity

utilization rates for French and German CRCS or if the Commission chose not to do so, to explain why. Further, the c ourt required the ITC to consider the French and German Producers’ claims that they would not be able to increase exports to the U.S. upon revocation of the order because of the high c apacity utilization as well as their commitment to the EU marke t. With reg ards to the likely 16 discernible impact standard, there are no statutory or SAAimports are more than one possibility , as opposed to one of likelihood , among many. The cour

t remands the matter to the Commission to determine, in the ma nn er re qu ir ed by l aw , w he th er th e r ec ur re nc e o r c on ti nu at io n o f i nj ur y is li ke ly, based on a more c omplete explanation of its find

ings. Usinor I , Slip Op. 2002-70 at 43-44. The Re mand D eterm inati on was uncle ar and c onfus ing: For purposes of the Commission’s determinations on remand in these reviews, we follow the Court’s instructions to apply the meaning of “likely” a s “probable.” To the extent t

he Court u sed “pro

bable” t o impute a

higher level of certain ty o f result than “likely,” we

also apply that standard but only for purposes of this remand, as previously we ha

ve found such a standard to be inconsistent with the statutory scheme as a whole. ITC Remand Results at 2, n.3. The I TC thus implied that it was, despite the court’s order, treating the word “likely

” as meaning something other than “pr obable.” The Commission, however , later st

ated tha t it “follo wed the Co

urt’s inst ructions by o pinion and

order da ted July 19, 2002, t

o apply the mean ing of ‘ likely ’ as ‘pr

obable.” Lette r from Ma

rily n R. Abbot, Secretary , United States International Trade Commission, to The Honorable Evan J. Wallach, Judge, United States Court of International Tra de (July 9, 2003). 24 guideline about what constitutes “no discernible adverse impact.” Without Congressional guidance, the I

TC conside

rs “likel y vo lume of the

subject im

ports and likely impact of

those imports on the domestic industry within a reasonably foreseeable time.” Usinor Industeel, S.A. v. United States , Slip Op. 2003-118 at 8, 2003 Ct. Int’l Trade L EXIS 116 (Sept. 8, 2003). An adverse impac t may

be disce rnible, y et may not cause materia l injury because “material injury”

is defined as “harm which is not inconsequential, immaterial or unimportant.” 19 U.S.C. § 1677(7)(A). “[T]he substantial evidence necessary to support an affirmative material injury determination is g

reater than that necessa ry to find the

re will no t likely

be no disc ernible adverse impact from imports of a particular country .” Id. at 11. Thus, the statutory bar f or finding no discernible adverse impact is lower than that f or ascertaining material injury

. Id.25

The ITC once ag ain found that the record evidence did not support the conclusion that French and German subject imports were likely to have no discer

nible adverse impact on the domestic i

ndustry if the ord ers wer e revoke d. IT C Remand Re sults at 21. The I TC states t hat its no discernible adverse impact analy sis centers on the subject imports from each country and the likely impact of

those impo rts on the

domestic i

ndustry within a r

easonab ly f

oresee able time were the orders revoked. I TC Remand Results at 20. The ITC say s that it interprets the no discern ible adve rse impac t provision

to be an exception to

the I TC’s abili

ty to cumulate imports in five-y ear re views: [t]he statute uses the phrase “no discern ible adverse impact.” I

n other words, the issue is wh ether imp orts will ha ve no “no ticeable ” or “de tectable ” adver se impac t. In a pply ing this s tandard , it would be inappropriate to c onsider w hether i mports are likely to have

a “significant” adverse impact, which is appropriate for the ultimate a naly sis of whe

ther the domestic i

ndustry is likely to be mate

rially injured if the orde r is revo ked. The

use of the

low “disc ernible ” threshold indicate s that Cong

ress did n ot intend f

or the Comm

ission to conduct a c omplete likely material injury

analysis, or eve

n an abbreviated one; rather, we unde rstand the provision as essentially re quiring us to identify those subjec t countries that are unlikely to present any

identifiable harm to the domestic industry suc h that they should be removed from the possibility of being cumulated with other subject countrie s. ITC Remand Results at 21 (emphasis in original). In the Remand Determination, the I TC has correctly

determined that imports from France and Germany

are not likely to have

no discernible adverse impact on the domestic industry were the orders to be revoked.

a French Producers The court in Usinor I , Slip Op. 2002-70 at 22-24, required the ITC to do a French country -specif ic analy sis, and c onsider c apacity utilization a

nd the par tial-y ear 2000 data in26

concluding that the likely discernible adverse impact test had been met for the French Producers. The F renc

h indu stry ’s ca

paci ty utili zatio n rates fo r CRCS w ere [ a per cent age ] in 199 7, [a percentage] in 1998, [a percentag e] in 1999, and [a percentage] in January -March 2000. ITC Rema nd Res ults a t 24. T he I TC dis cuss es the

French p roducers ’ inve

ntori es which to tale d [a number] short tons in 1999; combined with [a number] short tons of unused French production capacity in 1999, French production was [a number] short tons equivalent to [a percentag e] of U.S. produ

ction and [a perce ntage] o f appar

ent U.S. c onsumption

in 1999. I

TC Remand R

esults at 24. The Commission says that the volumes are pa rticularly sig

nificant given that the “applicable standard is whether subject imports are likely to have no discern

ible adverse impact.” ITC Remand Determination at 24 (empha sis in original). Though t he I TC conce des that a

[a perce ntage] c apacity

utilization i s a barr

ier to increased production, it claims that the French produc ers have presented numbers which are hi gh er th an [a pe rc en ta ge ], me an in g t ha t [ a p er ce nt ag e] do es no t e qu al fu ll pr od uc ti on ca pa ci ty. Defe ndan t’s Re spons e at 8 . Thus , for examp le, w

hile t he Fr ench Produ cers did re port [ a percentage] capacity

utilization in the January-March 2000 period, the diffe rence compared to the same period in the previous y ear can be attributed to higher leve ls of exports. ITC Remand Results at 25. Thus, while the ITC “considered the r eported level of capacity

utilization for the first thr ee months

of 2000, [th ey

did] not plac e decisi

ve weig ht on part ial y ear dat a, parti cularly in light of the full yea

r trends in French capacity utilization rates which show a continuing decline.” ITC Remand Results at 25. Th e IT C a ls o a ss er ts th at th e F re nc h p ro du ce rs ’ a bi li ty t o m ai nt ai n s uc h a hi gh ca pa ci tyutilization is due to its heavy reliance on its export market. ITC Remand Results at 24;27

Defend ant’s Res ponse at 8 . The I TC support s this clai m by stating that a lar ge incr ease in imports oc curred

in 1990-19 92, despit

e the hig h capac ity u

tilization r

ates. ITC Remand R

esults at 22; Def endant’ s Response

at 7. Afte

r the ord er was p ut in plac e, imports

from Fr ance fe ll dramatically, but we

re still existent showing the presence of certain channe ls of distribution left open into the U.S. ITC Remand Results at 23; Defendant’s Response a t 7. This is despite the fact tha t the Fre nch corr osion-re sistant ste el industr y is relative ly la

rge an d modern w

ith capa city which ha s doubled f

rom 1992–1 999. The I

TC claims t

hat the “ French industry

is more ca

pable now of participating in the U.S. market in a meaningf ul way than it was during the period examined in the original investigations.” I TC Remand Results at 23-24. Additionally, the I TC rejected the French Producers’ arguments that their current position as a net importer of CRCS demonstrated their inability to mee t even the demands of the French market, finding that the situation reflected a consc ious business decision to pursue export markets at the expense of their domestic market. Defenda nt’s Response at 8-9. The ITC found market softening, especially with the slowing of the German auto industry output, in turn having the possibility of increasing exports to the U.S. and increasing competition within Europe. Overal l, th e French Produ cers m ay have had diffi culty fil ling o rders b ecause of his toric ally high demand, but the ITC did not believe that the strong demand would continue unabated or that the French Producers would be the only ones able to satisfy the de mand. Defendant’s Response at 10. The I TC found th at Fren ch imports

undersol d the dome stic like product in about one -half of the price comparisons. I TC Remand Results at 23. The ITC states that the data to confirm the assertion that U.S. prices for the French produc t were considerably

higher than the domestic like28

product a nd thus unli

kely to cause increa sed impor

ts is unava

ilable an d the rec ent aver

age un it values (AUVs) are not probative g iven a likely diffe rent product mix. ITC Remand Results at 27. The ITC claims that it would not be surprised if there was a concentration in higher value products due to the AD/CVD duties and “in the original investigations, there was evidence of underselling by

the French subject product, which [it found] likely to occur if the orders were lifted.” ITC Remand Results at 28. Overall, the I TC noted the French industry ’s substa

ntial prod uction ca pacity and unuse d capac ity r

elative t o U.S. produ

ction and appare nt U.S. con sumption, it s availa ble inven tories, it s reliance on exports including exports to non-EU countries, the substitutability of the French product with the domestic like product, and the F rench subject produce rs’ trad e patter ns during the orig inal inve stigatio

ns. Base d on these

facts and in light of the finding in the review determination of the vulne rability of the domestic industry, [the I TC did] not find that the likely subject imports from Franc e would be

likely to have no

discern ible adve rse impac t on domest

ic industry if the orders w ere revoked. ITC Remand Results at 28. The French Producers state that, since 1993, due to a [a percentage] increase in F rench dema nd an d an [a

perc enta ge] i ncre ase i n EU demand, the

y have b een o

pera ting at ab ove [a percentage] capacity

utilization levels. Because they have not been able to keep pace with the significant growth in demand, the Fre nch CRCS’s inventory levels have bee n declining and the Producers have been having diffic ulty meeting c

ustomer orders; France is now a substantial and growing net importer of CRCS. Comments of French Producers at 4. The French Producers deemed that in order to deal with the increased EU de mand, they purcha sed Beautor and Haironville, companies which have never sold their products in the U.S. market, and have divested their sole U.S. facility whic h processes CRCS. As a result, they c laim they are the larg est CR

CS suppliers to th e EU m arke t at [a perc enta ge] c ompa

red w ith le ss tha

n tha t of [a29

percen tage] in the U.S. ma

rket. Comm ents of F rench Pr oducers at 5. Fur thermore , they

claim that supply has tightene d as a result of the new EU recy cling laws requiring all the weig ht of vehicles and appliances (including that of non-meta l components) be recy

cled will increase the demand for easily

recyc led CRCS. This, they claim, has caused a substantial incr ease in the percentage of CRCS in European cars and appliances. Comments of French Producers at 6. While the F renc h Prod ucers poin

t out t hat th e I TC cla

imed t hat th ere was an

[a perc enta ge] i ncre ased in Fr ench capa city, they a

rgu e tha t the I TC fa iled t o con sider

the [a percentage] increase in EU de mand. Comments of French Producers at 7. The Fre nch Producers also claim that the ITC bases its arg ument of excess capacity

solely on 1999, the only

year w hen the French producers were not operating at full capacity, and ignored the end of the POR (the first quarter of 2000) when capacity utilization was over [a percentage]. Comments of French Producers at 7-8. They

claim that the ITC also failed to consider that the F rench Producers had to reque st custome

rs to cancel orde

rs due to o verwhe lmed cap acity and they could not i

ncreas e their exports because they were already

at full capacity . Comments of French Producers at 8. Finally, the F rench Producers claim that the I TC based its market softening theory on what the Court labeled as “speculative theories” – unsubstantiated evidenc e citing lack of growth (which admit tedly was lower , but was st ill gr owth) . Com ments of Fren ch Pro ducers at 8 (ci ting Usinor I , Slip Op. 2002-70 at 22-23). The Defendant-I

ntervenors support the Commission’s conclusion that the record does not support th e conclu sion that F rench su bject imports are l ikely

to have no

discern ible adve rse impact on domestic industry if the order s are revoked. They

claim that the volume of French imports inc

reased from [a num

ber] NT in 1 990 to [a num ber] NT in 1 992 even

though c apacity30

utilization was at [a percentage] at the beginning of the period; French imports continued to enter the U.S. de spite the orders; th e French Produc ers are heavily depende nt on export

markets w

ith total exports to all countries other than the U.S. accounting for [a percentag e]; and inventory and unused production during the POR was equivalent to [a percentag e] of U.S. consumption. Comments of Defendant-Inter venors at 6-7. Furthermore, they claim that the Commission ackn owle dge d rig

htly that [ a per

cent age ] capa city utili zatio n mig

ht not actually equa l [a percentage] full production capac ity. Comments of Defendant-I ntervenors at 7. They

argue that the ITC was right to conc lude that France was a signific ant exporter even though it was a net importer and that t he Fre nch prod ucers’ s argument that th ey had to ca ncel ord ers due t o overwhelmed capacity

was weak as it was outside the POR. Comments of Defendant-I ntervenors at 8. The cour

t upholds th e IT C’s deter

mination w

ith reg ards to th e no disce rnible a dverse impact an aly sis and the

French Produce

rs. Sunset

reviews are fa ctual, c ase-by

-case determinations and need only be supported by substantial evide nce. See Nippon Steel , 301 F. Supp. 2d at

1360; Matsushita Elec. Indus. Co. v. United States , 750 F.2d 927, 936 (Fed. Cir. 1984). On remand, the ITC explained that it did a country -specific analy sis of the French Produce rs’ prod uction ca pacity and unuse d capac ity, inventor ies, reli ance on

exports, substitutability with the domestic like product, and the overall Fr ench trade patterns during the original investigation. Additionally , while the French Producers’ capa city utilization was high, leaving, as the I TC says, limited room for increa sing capacity , the French capacity utilization rates above [a percentage ] in 1997, 1998, and January-March 2000 show that [a per centage] was31

not a ceiling. In this context, and in light of the Commission’s conclusion reg arding the “weakened” state of U.S. domestic industry which was upheld by this cour t in Usinor I , Slip Op. 2002-70 a

t 33-36, a ny s mall incr

ease in c apacity

that coul d be tran slated int o increa sed export s to the U.S. meets the no discernible adverse impact standard. Such an inc rease in exports which coincided with increased capacity utilization was evidenced in the Commission’s analysis of the interim 2000 data as compared with the same period in 1999. See ITC Remand Results at 25. The I TC has als o provide d adequa te suppor t for its r ationale of why it affor ded less weight to the inte

rim 2000 da

ta. The I TC argu ed that increase d capac ity u tilization r

ates in interim 2000 over the same period in 1999 can be attributed to higher exports in 2000 period. Further more, this focus on a

vailable capaci ty, say s the I TC, overl ooks the F rench Pr oducers ’ export pat

terns an d ability to shift pr

oduction t

o export ma

rkets. Th e Commission

can dec ide to exercise its discre tion to wei gh evid

ence fr om differ ent time pe

riods and determine which is more probative of threat of injury

. Companhia Paulista De Ferro-L igas v. United States , 20 CIT 473, 483 ( 1996); see Metallverken Nederland B.V. v. United States , 14 CIT 481, 484 (1990). Given the standard of review, the I TC’s conclusion that the likely subject imports from F rance would not be likely to have no discer nible adverse impact on domestic industry were the orders to be revoked is both adequate and supported by substantial evidence. b German Producer s With respe ct to the G erman Pr oducers , the Cour

t instruct ed the ITC on rema

nd to consider the German Produc ers’ evidence o f incre ased ca pacity utilization d

uring th e latter

half of 2000 a nd their o bjection s to the ar

gument t hat their mills would b e opera

ting at f ull capa city for the f oresee able fut

ure. The ITC c oncluded , as it had origina lly, that the li

kely subject im

ports32

fr om Ge rm an y ar e n ot li ke ly t o h av e n o d is ce rn ib le ad ve rs e i mp ac t o n t he do me st ic in du st ry. ITC found that since the orders, subjec t imports declined by 82%. I TC Remand Results at 28. Though there was a decline, the I TC claims that the continuing presence of the imports show that cha nnels of d istributio n remain ed – part icularly since the German s

ubject pr oduct is generally substitutable and competitive with the domestic like product. ITC Remand Results at 28-29. Like the Frenc

h Producers, the German industry is relatively larg e and the producers themselves forecasted additional capacity to be available by

2000-2002. ITC Remand Results at 29; Defendant’s Response at 18. The I TC stated that “these facts undercut the arg uments of the German respondents that subject imports are not likely even to have a discerni

bleadverse impact.” ITC Remand Results at 29. The ITC found that following the imposition of the order s, the decrease in imports of German carbon corrosion-resistant steel wa s replaced by a “substantial” increase in imports of microalloy corr

osion-resistant steel. ITC Remand Results at 29; Defenda nt’s Response at 19. Despite this, the ITC claims that the Germans still have an inter est in increasing their exports of carbon steel . ITC Rem and Re sult s at 29 -30. T he Germ an pro ducers , lik e the Fr ench, had hi gh capacity utilization rates in the POR and, as per the Court’s instructions, the ITC examined the capaci ty u tilization da

ta for 20 00, parti cularly

the last two quarte

rs of 2000 . ITC R

emand Re sults at 30-31. The I TC found hi gh cap acity utilization, but did not p

ut much em

phasis on t

his data because the reports were inconc lusive as to whether the German producers will be oper ating at full capacity in the r

easonably f

oreseeable future. Prehear ing Brief on behalf of Ger man17 The Leitner Report states that the c apacity utilization rates were compiled from questionnaire responses which collected only first quarter 2000 data. See Defend ant’s App endix at 66. 33 Producers, Vol. II

at 66 (“Leitner Report” ) 17 ; Appendix to Response of Defendant United States International Trade

Commission to Plaintiffs’ Comments on Remand Determination at C90 (“Defendant’s Appendix); I TC Remand Results at 31; Defendant’s Response at 21. It a lso stated that customer orde

rs do not ne cessar

ily t ranslate into concrete or

ders and the produ

ction ca pacity in Germa ny a nd the EU g

rew rap idly

in 2000, a

nd additio nal German capa city coming on line in 2001-2002 will have increased the ability of German Producers to fill more orders. I TC Remand Results at 31-32. The c apac ity

utili zatio n rates re

porte d to th e I TC for

the f irst q uarter of 2000 w ere [ a percentage] compared with [a perc entage] for interim 1999. IT C Remand Results at 31. Furthermore, the German produce rs built up large home market and U.S. inventories in 1999- 2000 and t

he I TC argu

es that thi s undermi

nes their claim tha t they could not e

xpand their

sales to the U.S. market. ITC Remand Results at 32. The Ger man Produc ers cla

im that the

ITC f ailed to f ollow the c ourt’s dir

ections a nd aga in ignored the evidence. I

n particular, they

claim that, from April to September 2000, they submitted evidence showing the existence of capacity constraints for the foreseeable future that would preclude increased German e xports to the United States. Comments of German Producers at 6. They ar

gue that the evidence presente d shows that the capacity was so restrained in 2000 that they turned down ne

w orders and customers and both mill inventories and steel service center stocks were at low levels. Comments of German Produc ers at 6. The German Producers disagree with the Commission’s argument concer ning the uncertain nature of the orde rs34

translating into uncertainty of the German Producers operating at full capacity . They claim that their intention to operate at full capacity was not linked with orders as of June 2000 and that the Commission did not meet the requisite “probability” standard by arguing that the order ‘ma y be canceled or delay

ed” – this was a mere “possibility .” Comments of German Producers at 7. The German P roducer

s also ar gue tha t the Commiss ion erre d in sugg esting t hat sign ificant g rowth in German c apacity

in 2000, sc

heduled t o come on l ine in 2001 -2002, wo uld allow G erman mil ls to increase exports to the U.S., particularly since the increases were fa ctored into the submissions they made to the Commission in September - October 2000. Comments of German Producers at 7. They furthe

r point to independent studies which show that the capacity in 2001-2002 was increased to meet higher Ger man and EU demand and that any shortages were not the result of a fire in one of the plants, but rather due to the demand. Comments of Germa n Producers at 7-8. The German Producers arg ue that the ITC’s determination that its imports met the no discernible adverse impact standard is in error. The y arg ue that the Commission, by rely ing on the year end 1999 data when it should have considered the evidence closest to “vote day,”

did not follow the court’s instructions. They also claim that the Commission’s conclusion that the excess inv entorie s would be likely directe d to the U. S. market is erron eous bec ause, fi

rst, inventor ies were at norma l levels, a nd, seco nd, inven

tories ha d no rele vance to project ed sales to the U.S. be cause “ German m ills have never sol d steel to t he United States fr om their home market inventories.” Comments of German Producers at 13. The Ge rman Producers state that the claim regarding their he avy relianc e on export markets is unsubstantiated and that because of product shifts, CRCS pr

oduction a

nd shipmen

ts are lik ely to declin e becau se of the shift to microalloy. Comments of German Produc ers at 13-14. Finally , they say , revocation of the order35

will not lead to an increase of imports because Germa n CRCS imports account for [a percentage] of total su bject CRCS im

ports and [a perce ntage] o f U.S. CRCS c onsumption . German CRCS steel has, they say

, before and after the order s, been confined to automotive steel by one company, TKS; the volume of Ge rman CRCS sold in the U.S. has remained constant to the 1990s bec ause of t

he shift in demand to

microall oy. Thus, the

y c onclude, microall oy i

mports have not increased to injurious levels and American customers are unlikely to re place microalloy with CRCS in the foreseeable future. Comments of German Producers at 14-15. With regard to the German Producers, the De fendant-Interve nors also argue that the Commissions’s discernible adverse impact finding was supported by substantial evidence. They argue in support of the evidence the I TC used to conclude that order may be delaye d or cancelled, the natur e of the t emporar y shortage s; and the

increa se in cap acity

translat ing into U .S. exports. Comments of

Defend ant-I nterven ors at 9- 10. They

also support the ITC’s findi ngs with regar d to the effect of increased inventorie s, product shifting between CRCS and microalloy , and that fact that despite the orders, the German Producers still exported a significa nt volume into the United States. Comments of Defendant-Inter venors at 11-12. The I TC discuss ed a numbe r of factors that a

ddresse d the cour

t’s conc erns abo

ut capac ity utilization in Usinor I , Slip Op. 2002-70 at 24-25. The ITC pointed to the increase in micro-alloy

corr osion resi stant stee l impo rts f

rom G erma

ny ([a pe rcen tag e] of U .S. sh

ipmen ts in 1 992 to

[a percentage] in 1999), the capac ity for which ca n be used to produced the subject merchandise. IT C Rema

nd Res ults a t 29. T he co mbina

tion o f CRCS a

nd mic roal loy capa city total ed ov er [a percentage] of U.S. domestic consumption in 1999 and substantial additional capacity was coming on line in 2000-2002, as reported by the German Producers. Id. Just as in the case of the36

French Produce

rs, the I TC acknow

ledged that incr eased pr oduction i s limited by

high ca pacity utilization. Yet, despite high capacity utilization in the original investigation, the German Produce rs shippe d increa sing volu mes of LTFV impor

ts to the U. S. Also, Ge

rman inve

ntories in 1999 c ombin ed with unu sed p roduction capa city amou nted to [a n umber] sho rt ton s, eq

ual to [a percentage] of U.S. production and [a perce ntage] of U.S. consumption. Finally, the I

TC addressed the 2000 capacity utilization data which the court had instructed it to consider: the capacity utilization during the last two quarters of 2000 and projections that German capacity would be strained for the foreseeable f uture with no additional imports to the U.S. With regards to the 2000 capacity utilization figures, the Commissions cites the L eitner Re

port whic h, althoug h it showed

the German Produc ers oper ating a t full cap acity

in 2000, was

based on questionnaire re sponses ba sed on first quarte r data. T hough th e capac ity utilization r

ates for the first quarter of 2000 we

re [a per centag e] compar

ed to [a pe

rcenta ge] in the corresponding period in 1999, the ITC determined that the first quarter 2000 figures showe d considerable excess capacity in relation to U.S. production and U.S. consumption. ITC Remand Results at 31. With regards to the projections of German capac ity for the fore seeable future, the ITC de cided not

to rely on the numb er of or

ders on th e books of

the Germ

an Produc ers, as i

t believe d that ord

ers do not necessa rily translat e into pro duction. A

nd, the hig

her cap acity

in Germany in 2000 an

d the possi

bility of even m

ore in 200 1-2002 inc

reased their ab ility

to fill orders. Moreover, with projections of higher inventories and the fact that many G erman producers did not expect capacity utilization to rise above [a percentage], the I TC discounted the German Producers’ claims that they would not be able to expand sales to the U.S. market because they

were turning down customers and delay ing plant maintenance due to strained37

capacity

. Id. The I TC’s dete

rmination that the li

kely subject im

ports from German

y w ould be lik

ely to have no discernible adverse impact on U.S. industry if the orders were revoked is supported by substantia l evidenc e. “I

t is within th e Commission ’s discre tion to make

reasona ble interpretations of the evidence and to determine the ove rall significance of any

particular factor or piece of evidence.” Maine Potato Council v. United States , 9 CIT 293, 300 (1985). The I TC has thus properly e

xercised its discretion in choosing the data on which it based its conclusion.

c The Commission’s Conclusion Concerning the Impact of EU Integration on the Subject

Imports Is Supported by Substantial Evidence The court in Usinor I

directed the ITC to examine whether the changes in the EU since the original investigation affected the likelihood that increases in imports would occur upon revocation. Slip Op. 2002-70 at 39-40. The IT C affirmed its findings from the Review Determination. It ag ain dismissed the European Producers’ argume nts that an increased focus on the EU market due to integration made less likely increased exports to the U.S. upon revocation. The ITC reiterat[ed] [its] conclusion from [the Review Determination] that the additional

integration and expansion that occurred as a re sult of the formation of the European Union could have the potential to increase the intra-EU marketing of subject products from France and Ge rmany and ther

eby reduc e to some degree these countries’ exports to the United States compared to the original investigations. However, substantial integration had alre ady taken pla ce by the time of the original investigations in 1992 and 1993. Such pre-existing integr ation did not prevent France and Germany from exporting the increasing volumes of subject merchandise to the United States at that time. ITC Re mand Resu

lts at 34. T

he Commission, in examin ing the G erman a

nd French Produc ers’ intra-EU exports, found that there were increase s after 1994 and 1995, the y ears after the38

imposition o f the re spective orders, but gen erally

the perc entage

of sales to these e

xport marke

ts varied little from 1990-1999; this was despite the EU’s Single European Act of 1986, the Maastricht Treaty

of 1992, and the accession of Sweden, Finland, and A ustria in 1995. ITC Remand Re sults at 33- 35. Furt hermore , WTO data

indicate d that iron

and stee l extra-EU

exports have increased not decrease d during the time. ITC Remand Results at 35. The Court

instructe d the I TC to consi der the French a nd Germa n Produce

rs’ arg uments that increased integration has made the EU their home market in light of Stainless S teel Plate from Sweden, Inv. No. AA1921-114 (Review) , USITC Pub. 3204 (July 1999) a nd Pressure Sensitive Plate from Ita

ly , Inv. No. AA1921-167 (Review) , USITC Pub. 3157 (Feb. 1999). Usinor I , Slip Op. 2002-70 at 39. The ITC originally “acknowledge[d] that the French and German producers’ relationship with Europe could have the potential to reduce to some degree likely exports compared to the original investigations.” ITC Remand Results at 36. The Commission, however, found there were “sufficient other f actors such that we do not conclude that subject imports from France and Germany are likely to have

no discerni

bleadverse impact.” ITC Remand Results at 36-37 (emphasis in original). The Ger man Produc ers arg

ue that th e Commission

has not ab ided by

its prece dent in discounting the significance of EU integ ration on German capabilities. Comments of German Producers at 8. They

had produced evidence to the ITC that they would not sacrifice their long term relationship with EU customers by inc reasing significantly

exports to the U.S. upon

revoca tion of the

orders; from 1990 -1999 ab out [a per centag e] of Ger

man CRCS sale s were so ld

to custome

rs within the EU (inc luding G ermany ); the Ge rman Prod

ucers a nticipate d their sa

les to other EU members would incr

ease be tween 19 99-2002; a

nd the ope

ning of t he EU mar

ket in39

1993 and the introduction of the Euro in 1999 would provide a focus on the EU market. Comments of German Producers at 9. The German Producers claim that some additional factors make the ITC’s determination regarding the eff

ects of EU integration erroneous. F irst, the fact that intra-EU exports varied little between 1990-1992 and 1993-1999, respectively, actually shows that the Ge rman Producers

are not e xport-orie nted as th e EU mar

ket has pr ovided a s table, ma

rket for German C RCS producers. Second, they

argue that for the ITC to assert that German CRCS shipments to other EU nations declined between 1997-1999 is disingenuous as the re cord evidence exhibits that CRCS shipments are being replaced with microalloy corrosion resistant steel. Third, the German Produce rs also a rgue that the ITC has er

roneousl y di scounted

the sign ificanc e of the Si

ngle Market and the Euro. Fourth, the Commission’s use of EU wide export rates for “ all iron and steel products” through 1998 does not constitute substantial evidence as to why German intra-EU CRCS shipments should be combined with German third country CRCS shipments in evaluating whether they

are export oriented. Comments of German Producers at 12. Fifth, the Commission’s reliance on the volume of extra-EU exports is immaterial as it constitutes less than [a percentage] of total German shipments and less than [a perc entage] of U.S. consumption. Comments of German Producers at 12. The Fre nch Produ

cers ar gue tha t the I TC has fa

iled to mee

t the no dis cernibl e adver se impact standard with respect to EU integration and incr easing imports. They

claim that the Commission’ s asserti ons of exce ss capac ity a nd availa ble inven tories even if taken as true, at most simply show that it might be ‘possible’ for the French Producers to increase the ir exports. The Commission, however, does not even attempt to provide any cogent rationale why

the French Producers would be likely to use any ava

ilable CRCS to increase their meager level of U.S. sales40 instead of augmenting their robust sales in the EU mar ket. Comments of French Producers at 10. The Fre nch Producers further opine that the ITC’s conclusion of “likely”

increase of exports to the U.S. market hinges on the “hea vy reliance

. . . on export markets” as if high sales to the EU market somehow sug gests a likelihood of increased expor ts to t he U. S. mar

ket. Comme

nts of French Pr

oduc ers a t 11. T hey dispu te tha t with [a percen tage] of the EU ma

rket tha t they would aba

ndon their

establish ed Europ ean cust omers to increase their [a percentag e] share of the U.S. market. Comments of French Producers a t 12. And, while

the I TC claims t

hat the F rench Pr

oducers sell a “c onsidera

ble volume ” of expor

ts to

non- EU co

untri es, [a perc enta ge] o f the ir pr

oduc tion i s sold

withi n the EU, le aving onl

y [ a percentage] for the remaining markets. Comments of French Producers at 12. The Defendant-I

ntervenors support the Commission’s determination that the French and German Producers’ purported focus on the EU market would not lead to curtailed imports so as to meet the no discernible adverse impact test. They stress that the percentage of shipments by the German producers to the EU market has not incr eased since the original investigation, substantia l EU integ

ration ha d happen ed prior

to the orig

inal inve stigation, iron an d steel e xports by EU members f

or ports outside the EU increased affecting all steel products, and the significant volume of the German non-EU exports shows their export-oriented nature. Comments of Defend ant I nterven ors at 12- 13. With re gards t o the Fre nch Produ

cers, th e Defe

ndantIntervenors claim that the fa ct that [a percentage] of Frenc h Production during the POR went toward all exports (excluding the U.S.) shows that they remain export oriented. Comments of Defend ant I nterven ors at 13- 14. I

n addition , they

argue there is l imited pre cedenti al value to sunset reviews, as indicated in Ugine-Savoie I mphy v. United States , 248 F. Supp. 2d at 26-27,41

which states that each case is unique and needs to be de cided on a case-by -case basis. The ITC’s conclusion that EU integ ration would not affect the likelihood of increased exports for the French and German Producer s is supported by substantial evidence . The ITC found that most of the EU integration which had taken place by the time of the original investigation in 1992 and 1993 did not prevent the increase in exports, particularly since the largest increase in intra-EU e xports occurred in 1994 and 1995 just after the imposition of the orders. This is telling due to the considerable portion of integr ation that had occurred as per the Single European Act and the Maastricht Tre aty and the implication that the orde rs and not EU integration increased both EU Producers’ intra-EU focus. Although the EU Producers cla im that the EU is th eir prima

ry market, the data

the I TC cites sh

ows that extra-EU exports have actually increased from the time of the original re view and the sunset review. The ITC was within the bounds of its discretion in concluding that the German and French Producers cannot claim the EU a s their home market, despite its previous determinations in Stainless Steel Plate from Sweden and Pressure

Sensitive Plate from Ita

ly . The Commission must consider the many ec onomic variables unique to each review and ther e is limited precedential value to previous reviews bec ause the Commission is not required to make identical determinations in each, and it must consider each subject import and the circumstances of e ach investigation sui gener

is

. See Usinor I , Slip Op. 20 02-70 at 6 4; Timken Co. v. United States , Slip Op. 2004- 7 at 32, 54 -55, 2004 CIT L EXIS 17 (Feb . 25, 2004) ; Armstrong Bros. Tool Co. v. United States , 84 Cust. Ct. 102, 115 ( 1980); see also Citrosuco Paulista, S.A. v. United States , 12 CIT 11 96, 1209 ( 1988). Th e IT C states th at it consi dered th e French and Ge rman Prod

ucers’ relationship to the EU market and the potential for this to affect likely imports to the United42

States, but found the aforementioned evidence to fulfill the no discernible a dverse impact standard. The ITC’s conc lusion that the French and German Producers’ E U focus would not be likely to have no discer

nible adverse impact is supported by substantial evidence. Becau se the Comm

ission’s in

terpretation an

d applica tion of the

no discer nible adv erse impact sta

ndard is s upported by s ubstantia l evidenc e and is in

accord ance wi th the law , this exception to cumulation under 19 U.S.C. § 1675a(a)(7) does not apply . Therefore, the I TC’s exercising of its discretion to cumulate French and Ge rman imports with those of Australia, Canada, Japan, and Korea is supported by substantial evidence and is in accordance with law. B The ITC’s Determination that Revocation of the Orders on Subject Imports Is Likely to Cause the

Continuati on or Rec urrence of Mater

ial Injury W

ithin a Rea sonably Foresee able Time Is Supported by Substantial Evidence In sunset reviews, afte

r deciding whether to cumulate, the I TC is required to determine whethe

r revoc ation of a

n order . . . would be

likely to lead to continuation or recurrence of mater ial injury within a reasona bly foresee able time. The Commission shall consider the likely volume, price e ffect, and impact of imports of the subject merchandise on the industry if the order is revoked . . . . 19 U.S.C. § 1 675a(a) (1); see Ugine-Savoie I mphy , 248 F. Su

pp. 2d at 1 210. I

n carry ing out th is analy sis, [t]he determination called for in these type s of reviews is inherently predictive and speculative. There may

be more than one likely

outcome following revocation or terminat ion. The p ossibility

of other likely outcomes

does not me an that a determination that revocation or termination is likely to lead to continuation or recurrence of dumping. . . is er roneous, as long as the determination of the likelihood of continuation or recurrence is reasona ble in light of the facts of the case. In such situations, the order or suspended investigation will be continued. SAA, P.L. 103-465, at 883 (1994). Sunset reviews ar e prospective in nature which lends to the use of counter-factual analy sis to fulfill the “likelihood” standard, which is a lower standard than43

that required for a material injury analysis. Id. at 883-84. The ITC must “decide the likely impact in the reasonably

foreseeable future of an important cha nge in the status quo – the revocation of an order or termination of a

suspende d investig ation and the elimination of the restra ining ef fects of that order or suspended investigation on volumes and prices of imports.” Id. at 884. To

come to its conclusion, the ITC is required to take into account

(A) prior injury deter

minations, including volume, price effect, and impact of imports of the subject merchandise on the industry before the order was issued . . . , (B) whether any

improvement in the state of the industry is re lated to the order

. . . , (C) whether the industry is vulner able to material injury if the order is revoked . . . , and (D) in an antidumping proceeding under sec tion 1675(c) of this title, the findings of the administrative authority regarding duty

absorption under section 1675(a)(4) of this title. 19 U.S.C. § 1675a(a)(1). In Usinor I , Slip Op. 2002-70 at 36-42, the court required that the Commission reconsider its findings regarding volume, price , and impact of the cumulated imports as the findings were not suppor

ted by substantia

l evidenc e. The c ourt also directe d the Commis sion to det ermine in accord ance wi th the law whether the rec urrenc e or cont

inuation o f injury

to domestic

injury is likely based on a more thorough explanation of its findings. Usinor I , Slip Op. 2002-70 at 43-44.

1 The Commission’s Findings Regarding Likely Volume of Subject Imports Are Supported by Substantial Evidence The ITC reaff

irmed its finding in the initial review determination that the volume of cumulated subject imports likely would be sig nificant within a reasonably foreseeable time if the44

orders w ere re

voked. I n the orig inal inve stigation, the cum ulated vo lumes of th e subjec t imports from Fr ance, G ermany

, Austral ia, Cana

da, Japan, and Kore a went fr om 1.5 millio n short ton s in 1990 to 1.4 million tons in 1991, to 1.9 million tons in 1992. ITC Remand Results at 39. The increase in cumulated subject imports corresponded to a sig nificant increase in market share for the subje ct imports : the cumu lated imports’ mar

ket shar e rose f rom 11.7%

in 1990 to 12 .3% in 1991 to 14.4% in 1992. Id. The imports “fell substantially” upon imposition of the orders and have remained “at levels significa ntly below the pre- order level during the period of re view.” Id. In the remand, in support of its conclusion, the Commission found that there was consider able ca pacity to produc e CRCS in the s ubject c ountries

which wa s grea

ter than U.S. domestic consumption during the period of review; this was vital information, since the additiona l capac ity d

irected to produc e the non- subject c orrosion -resista nt steel c ould be use d to produce CRCS. Id. at 39-40. Also, although it f ound that a

vailable capaci ty v aried a

mong the six subject countries, the Commission determined that on a “cumulated basis the subject countries had significant available capac ity.” Id. at 40. Mor eover, t he Commissio

n states that given the high fixed costs associated with corrosion-re sistant steel production, there is an incentive to maximize the utilization of available capacity. Furthermore, we aga

in find that subject producers’ inventories of the subject mercha ndise we re fair ly s ubstantia l and that there is a particu lar ince ntive to produce and sell more [CRCS] because it is among the highest value-added carbon steel products and therefore pr ovides higher returns than many other carbon s teel pro ducts. Id. The ITC further found he avy relianc e on export markets by the CRCS producers and a n increased share of the U.S. market ca ptured, despite the imposition of the orders. Id. Despite the potential for further EU integration to reduc e some of the exports, the Commission found that signific ant cumul ated volu mes of sub

ject impor

ts are lik ely within a r

easonab ly f

oresee able time45

if orders are revoked. Becau se the co

urt finds t hat the Com

mission’s d

etermina tion reg arding

capaci ty utilization, no discernible adverse impact, and EU integration and thus cumulation are supported by substantial evidence , the court finds the Commission’s volume findings similarly are sufficiently supported by

substantial evidence and are in accorda nce with the law. 2 The Commission’s Determ ination About Likely Price Effects of Subject Imports Is Supported by Substantial Evidence The I TC adopte d the find ings in th e Review

Determi nation “t hat the sig

nifican tly increased volumes of cumulated subject imports likely would undersell the domestic like product to a significant degree, lea ding to significant price depression and suppre ssion, within a reasonably

foreseeable time.” I TC Remand Results at 41. The Commission stated that it had “reexamined the record, and [has] taken special note of the unde rselling, price suppression, and price depression evidenced on the rec ord of the original investigation. Id. Based on these findings, the ITC found that the “pr icing trends over the current per iod of review differ[ed] among th e sever

al produc ts, althou gh in g eneral

prices w ere some

what lowe

r in 1999 th an in 1997. The

pricing data show

a mixture of

under- a nd over- selling

by s ubject imp orts eve

n with orders in place” Id. Because the subject imports were sold primarily through contracts and spot market sa les, the I TC finds tha

t this would

likely continue upon rev ocation o f the ord ers: [i]n both the contract and spot markets, given the general inter changeability

of the subject im

ports with

the domes tic like pr

oduct, pr ice is an important

factor in purchasing decisions. As stated in the review deter minations, prices in the spot market could affect prices in the domestic industry ’s contract business, but contracts may

provide some measure of insulation from spot market price fluctua tions. We fi

nd that on b alance , the incr eased sa les of sub ject impor

ts would likely be achie

ved by means of

aggressive pricing

in the U.S. market, which would result in significant negative effe cts on domestic prices, just as occurred46 prior to th e impositio n of the or ders. Id. at 41-42. The court upholds the ITC’s determination re garding the likely price effects of the cumulated imports because it does not find the ITC’s log ic unreasonable. See Titanium Me tals Corp. v. United States , 155 F. Supp. 2d 750, 756 (CIT 2001). The rela tionship between “price effect and . . .volume is obvious” as this court noted in Usinor I , Slip Op. 2002-70 at 41. Becau se the Comm

ission’s f inding r egard ing like ly v olume in its

revised volume analy sis is supporte d by

substantia

l evidenc e, and its

conclusi ons need

only be reas onable f

or this co urt to uphold them, see Koyo Seiko Co. , 36 F.3d at 1570, the court likewise upholds the likely price effects analy sis. 3 The Commission’s Findings on Likely Impact of Subject Imports Are Suppor ted by Substantial Evidence The ITC adopted its findings in the Review D etermination that, if the orders were revoked, there would be a sufficient quantity of the subject imports and at prices below that of the domestic product so as to have a significant adverse impact on the domestic industry in a reasonably

foreseeable time. During the 1993 dete rminations, the Commission found that the increa sing volu

me of lowe

r-price d imports ha

d depres sed pric es and ca use U.S. domestic industry to suffer lost marke t share, reduced capacity

utilization, and financial losses; capital expenditur

e and R& D expense s also dec lined, pa rticular ly d uring th e latter

part of the POR, which undermined the industry’ s ability to compete in the U.S. market. I TC Remand Results at 42. The I TC deter mined tha t the imposi

tion of the

orders h ad a “po sitive ef fect” on the dome stic industry: four y

ears after the imposition of the order, in 1997, the domestic industry ’s operating47

profit margin had increased, and c apital expenditures and R&D expenses had climbed with the “dramatic decrease” of

the subject imports. Id. The ITC uses the curre nt state of the U.S. market to bolster its argument that domestic injury is vulnerable to material injury if the orders are revoked, claiming the volume and price ef fects of the cumulated subject imports would be detrimental to domestic industry and would likely cause loss of market share. Id. at 43. The ITC say s that the p

roductio n, shipmen

ts, sales, and reve

nue leve ls of U.S. in

dustry would be a

dversel y affected by

the following price and volume declines. Furthe rmore, the reduction in production, sales, and revenue would affect the U .S. industry’s profitability , bear on its ability to raise c apital and make capital investments, and cause employ ment declines. Id. Having upheld the Commission’s position in the Review Determination setting out the domestic industry’s weake ned condition, in Usinor I , this court stated that the “Commission could reasonably

find that significant increases in import volumes coupled with price dec lines would lead to significant injury .” Slip Op. 2002-70 at 42. In Usinor I , however, the court found that the Commission’s volume and price effects analyses were insufficiently supported. Here, as the Commission’s volume and price effect findings are supporte d by substantial evidence , the Commission’s findings regarding the likely impact of cumulated subject imports is supported by substantial evidence and is in accordance with the law

. Because the Commission’s findings concerning likely volume, price ef

fects, and impact on U.S. domestic industry are supporte d by substantial evidence , the Commission’s determination that the revocation of the orders on subject imports of CRCS is likely to lead to the continua tion or re curren

ce of ma terial in jury within a r

easonab ly f

oresee able time

is also supported by substantial evidenc e and is in accordance with law.48 VI CONCLUSION For the foregoing r

easons the ITC’s five-y

ear, sunset review in Certain Carbon Steel Products From Australia, Belgium, Bra zil, Canada, Finland, France, Germany , Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom , 65 Fed. Reg. 75,301 (Dec. 1, 2000) is sustained.

/s/ Evan. J. Wallach Judge Dated: June 9, 2004 New York, New York