United States Court of Appeals for the Federal Circuit 

04-1373, -1374 

NUCOR CORPORATION, 

Plaintiff-Appellant, 

and 

UNITED STATES STEEL CORPORATION, 

Plaintiff-Appellant, 

and 

BETHLEHEM STEEL CORPORATION, NATIONAL STEEL CORPORATION, 

STEEL DYNAMICS, INC., WEIRTON STEEL CORPORATION, 

and INDEPENDENT STEELWORKERS UNION, 

Plaintiffs, 

v. 

UNITED STATES, 

Defendant-Appellee, 

and 

AB SANDVIK STEEL (now known as AB Sandvik Materials Technology) 

and SANDVIK STEEL COMPANY (now known as Sandvik Materials Technolgy), 

and 

ACERALIA CORPORACION SIDERURGICA, S.A., 

ARCELOR INTERNATIONAL AMERICA INC., 

ARCELOR PACKAGING INTERNATIONAL, SIDMAR, N.V., 

SOLLAC ATLANTIQUE, SOLLAC LORRAINE, and TRADEARBED, INC., 

and 

BHP STEEL AMERICAS, LTD. (now BlueScope Steel Americas LLC), 

BHP STEEL LLC. (now BlueScope Steel Limited), 

NEW ZEALAND STEEL, LTD., and ISCOR (PTY.) LTD., 

and 

CORUS STAAL BV and CORUS STEEL USA INC., 

and 

DONGBU STEEL CO., LTD. and POSCO, 

and 
- 2 - 

NIPPON STEEL CORPORATION, NISSHIN STEEL CO., LTD., 

KOBE STEEL LTD., JFE STEEL CORP. 

(formerly known as Kawasaki Steel Corp. and NKK Corporation), 

THAI COLD ROLLED STEEL SHEET PUBLIC CO., LTD., and 

SUMITOMO METAL INDUSTRIES, LTD., 

and 

SIDERURGICA DEL ORINOCO, C.A. and SIDERAR S.A.I.C., 

and 

THYSSEN KRUPP STAHL AG and SALZGITTER AG, 

Defendants-Appellees, 

and 

COMPANHIA SIDERURGICA NACIONAL, COMPANHIA SIDERURGICA PAULISTA, 

USINAS SIDERURGICA DE MINAS GERIAS, S.A., and HYUNDAI HYSCO CO., LTD., 

and 

ASSOCIATION OF GERMAN SPECIALTY COLD ROLLED 

STEEL STRIP PRODUCERS, 

and 

BORCELIK CELIK SANAYII VE TICARET A.S., 

Defendants. 

Charles Owen Verill, Jr., Wiley Rein & Fielding LLP, of Washington, DC, argued 

for plaintiff-appellant, Nucor Corporation. With him on the brief were Alan H. Price and 

Timothy C. Brightbill. 

Stephen P. Vaughn, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, 

DC, argued for plaintiff-appellant, United States Steel Corporation. With him on the 

brief were Robert E. Lighthizer, John J. Mangan and James C. Hecht. 

Charles A. St. Charles, Attorney, Office of the General Counsel, United States 

International Trade Commission, of Washington, DC, argued for defendant-appellee, 

United States. With him on the brief were James M. Lyons, Acting General Counsel, 

and Rhonda M. Hughes, Acting Assistant General Counsel for Litigation. Of counsel 

was Marc A. Bernstein, Attorney. 

Robert S. LaRussa, Shearman & Sterling LLP, of Washington, DC, for 

defendants-appellees, Aceralia Corporation Siderurgica, S.A., ET AL. With him on the 

brief was Christopher M. Ryan. Of counsel were Quentin M. Baird and Julie C. 

Mendoza, Kaye Scholer LLP, of Washington, DC. 

Lynn M. Fischer Fox, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, 

DC, for defendants-appellees, BHP Steel Americas, Ltd. (now BlueScope Steel 
- 3 - 

Americas LLC), ET AL. With her on the brief were John D. Greenwald, Robert C.

Cassidy, Jr., Gary N. Horlick and Leonard M. Shambon. Of counsel was Kristin H. 

Mowry. 

Eric C. Emerson, Steptoe & Johnson LLP, of Washington, DC, for defendantsappellees, Corus Staal BV, ET AL. With him on the brief were Richard O. Cunningham

and Tina Potuto Kimble. 

Donald B. Cameron, Kaye Scholer LLP, of Washington, DC, for defendantsappellees, Dongbu Steel Co., Ltd., ET AL. With him on the brief were Juile C.

Mendoza, R. Will Planert and Margaret S. Rudin. 

Kenneth J. Pierce, Willkie Farr & Gallagher LLP, of Washington, DC, for 

defendants-appellees, Nippon Steel Corporation, ET AL. With him on the brief were 

William H. Barringer and Robert E. DeFrancesco. Of counsel were Christopher Dunn, 

James P. Durling, Daniel L. Porter, Matthew R. Nicely and Carrie L. Owens. 

David P. Houlihan, White & Case LLP, of Washington, DC, for defendantsappellees, Siderurgica Del Orinoco, C.A., ET AL. With him on the brief were Gregory J.

Spak and Richard J. Burke. Of counsel was Frank H. Morgan. 

Gail T. Cumins, Sharretts Paley Carter and Blauvelt, P.C., of New York, New 

York, for defendants-appellees, Thyssen Krupp Stahl AG, ET AL. 

Appeal from: United States Court of International Trade 

Judge Gregory W. Carman 

 
United States Court of Appeals for the Federal Circuit

04-1373,-1374 

NUCOR CORPORATION, 

Plaintiff-Appellant, 

and 

UNITED STATES STEEL CORPORATION, 

 Plaintiff-Appellant, 

and 

BETHLEHEM STEEL CORPORATION, NATIONAL STEEL CORPORATION, 

STEEL DYNAMICS, INC., WEIRTON STEEL CORPORATION, 

and INDEPENDENT STEELWORKERS UNION, 

 Plaintiffs, 

v. 

UNITED STATES, 

Defendant-Appellee, 

and 

AB SANDVIK STEEL (now known as AB Sandvik Materials Technology) 

and SANDVIK STEEL COMPANY (now known as Sandvik Materials Technology), 

and 

ACERALIA CORPORACION SIDERURGICA, S.A., 

ARCELOR INTERNATIONAL AMERICA INC., 

ARCELOR PACKAGING INTERNATIONAL, SIDMAR, N.V., 

SOLLAC ATLANTIQUE, SOLLAC LORRAINE, and TRADEARBED, INC., 

and 

BHP STEEL AMERICAS, LTD. (now BlueScope Steel Americas LLC), 

BHP STEEL LLC (now BlueScope Steel Limited), 

NEW ZEALAND STEEL, LTD., and ISCOR (PTY.) LTD., 

and 

CORUS STAAL BV and CORUS STEEL USA INC., 
04-1373,-1374 2 

and 

DONGBUSTEEL CO., LTD. and POSCO, 

and 

NIPPON STEEL CORPORATION, NISSHIN STEEL CO., LTD., 

KOBE STEEL LTD., JFE STEEL CORP., 

(formerly known as Kawasaki Steel Corp. and NKK Corporation), 

THAI COLD ROLLED STEEL SHEET PUBLIC CO., LTD., and 

SUMITOMO METAL INDUSTRIES, LTD., 

and 

SIDERURGICA DEL ORINOCO, C.A. and SIDERAR S.A.I.C., 

and 

THYSSEN KRUPP STAHL AG and SALZGITTER AG, 

 Defendants-Appellees, 

and 

COMPANHIA SIDERURGICA NACIONAL, COMPANHIA SIDERURGICA PAULISTA, 

USINAS SIDERURGICA DE MINAS GERIAS, S.A., and HYUNDAI HYSCO CO., LTD., 

and 

ASSOCIATION OF GERMAN SPECIALTY COLD ROLLED 

STEEL STRIP PRODUCERS, 

and 

BORCELIK CELIK SANAYII VE TICARET A.S., 

 Defendants. 

___________________________ 

DECIDED: July 7, 2005 

___________________________ 

Before RADER, BRYSON, and GAJARSA, Circuit Judges. 

BRYSON, Circuit Judge. 

 The appellants, United States Steel Corporation and Nucor Corporation, are 

domestic steel producers. Along with other domestic producers, they petitioned the 

International Trade Commission to investigate imports of cold-rolled steel products to 

determine if those imports were causing material injury to the domestic steel industry. 

See 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). Upon completion of its investigations, the 
04-1373,-1374 3 

Commission issued final determinations that the domestic steel industry was not 

materially injured by reason of the imports. The appellants and other domestic 

producers filed an action in the Court of International Trade challenging the 

Commission’s negative material injury determinations. The Court of International Trade 

sustained the Commission’s determinations. Nucor Corp. v. United States, 318 F. 

Supp. 2d 1207 (Ct. Int’l Trade 2004). U.S. Steel and Nucor appeal. We affirm. 

I 

 Section 201 of the Trade Act of 1974, 19 U.S.C. § 2251(a), authorizes the 

President to take appropriate action to protect domestic industries from substantial 

injury due to increased quantities of imports. In June 2001, the President requested 

that the Commission conduct a section 201 investigation of steel products imported 

between January 1997 and June 2001. Following its investigation, the Commission 

determined that cold-rolled steel products “were being imported into the United States in 

such increased quantities as to be a substantial cause of serious injury to the domestic 

industry” and recommended that safeguard tariffs be imposed on steel products. 

Consequently, in March 2002 the President imposed safeguard tariffs on steel products, 

including cold-rolled steel products, of 30 percent for the first year, 24 percent for the 

second year, and 18 percent for the third year. 

In September 2001, a number of domestic steel producers petitioned the 

Commission to conduct the antidumping and countervailing duty investigations that 

gave rise to this case. The Commission’s antidumping and countervailing duty 

investigations, which were directed to certain cold-rolled steel products, overlapped the 
04-1373,-1374 4 

section 201 investigation and the subsequent imposition of tariffs on cold-rolled steel 

products. 

The Commission’s responsibility in an antidumping or countervailing duty 

investigation is to determine if a domestic industry is materially injured or threatened 

with material injury by reason of imports. See 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). 

Material injury is defined as “harm which is not inconsequential, immaterial, or 

unimportant.” Id. § 1677(7)(A). In order to make a material injury determination, the 

Commission must consider the volume of the imports, the effect on prices of domestic 

like products due to the imports, and the impact of the imports on the domestic 

industry’s production. Id. § 1677(7)(B)(i). When considering the volume of the imports, 

the Commission must determine if the volume is significant. Id. § 1677(7)(C)(i). When 

determining the effect on price, the Commission must consider whether there has been 

significant price underselling and whether the domestic prices are depressed or 

suppressed because of the imports. Id. § 1677(7)(C)(ii). 

The Commission issued final determinations on all of the subject investigations in 

September and November 2002. In those determinations, the Commission found that 

the “Section 201 investigation and the President’s remedy fundamentally altered the 

U.S. market for many steel products, including cold-rolled steel.” The Commission 

found that imports of those products declined sharply and that domestic prices 

increased significantly in the period after the imposition of the section 201 tariffs. The 

Commission further reported that, according to purchasers, the reduction in imports due 

to the section 201 tariffs had led to “higher prices, supply shortages, and some broken 

or renegotiated contracts.” Based on the results of its investigation, the Commission 
04-1373,-1374 5 

concluded that the section 201 relief was the principal reason for the sharp decline in 

imports near the end of the investigation period. The Commission further found that, as 

of the conclusion of the antidumping and countervailing duty proceedings, “the domestic 

cold-rolled steel products industry is neither materially injured nor threatened with 

material injury by reason of subject imports.” Because the Commission determined that 

the domestic industry was not suffering present material injury or a threat of material 

injury as a result of the subject imports, no antidumping or countervailing duties were 

imposed. 

 In the Court of International Trade, the domestic producers argued that the 

Commission’s negative material injury determinations were flawed because, among 

other reasons, the Commission failed to consider the effects of imports in the early 

portion of the investigation period; it failed to make a determination regarding the 

significance of importers’ underselling of domestic producers; and it erred in its 

determinations regarding the volume of imports and their impact on domestic prices. In 

a detailed opinion, the trial court sustained the Commission’s determinations. 

II 

U.S. Steel and Nucor argue that the Commission erred by failing to consider the 

effects of products imported prior to the imposition of section 201 tariffs when it 

determined that the domestic industry was not suffering current material injury because 

of imports. In particular, they contend that the requirement in 19 U.S.C. §§ 1671d(b)(1) 

and 1673d(b)(1) that the Commission determine whether the domestic industry is 

suffering material injury “by reason of imports” mandated that the Commission consider 

the effects of imports throughout the period of investigation and not confine its 
04-1373,-1374 6 

consideration to the effects of current imports. Because, in the appellants’ view, the 

Commission based its material injury determinations solely on current imports, the 

appellants argue that the Commission’s material injury determination was legally flawed. 

 The trial court held that the Commission had reasonably construed the phrase 

“by reason of imports” in 19 U.S.C. §§ 1671d(b)(1) and 1673d(b)(1) to allow it to focus 

its investigation on the most recent import data. The court explained that the 

Commission had investigated imports for the entire period of investigation. Although the 

Commission had focused mainly on current imports, it had also considered imports 

during the early portion of that period in assessing the volume of imports, their effects 

on price, and the overall impact of imports on the domestic industry. The Commission’s 

particular focus on current imports, according to the trial court, was “in accord with the 

remedial purpose of duties which are intended merely to prevent future harm to the 

domestic industry by reason of unfair imports that are presently causing material injury.” 

The court also found that although the Commission did not state explicitly that past 

imports were not causing present material injury, it implicitly made that determination. 

According to the court, the Commission properly assessed the effects of imports early in 

the investigation period in light of the evidence that there was a steep decline in imports 

near the end of the investigation period. 

Sections 1671d(b)(1) and 1673d(b)(1) state that the Commission must determine 

whether a domestic industry “is materially injured . . . by reason of imports.” They do 

not specify how the Commission should weigh imports early in the period of 

investigation as compared to imports closer to the date of decision, nor do they provide 

any guidance as to the considerations that should influence the weight the Commission 
04-1373,-1374 7 

assigns to data from different portions of the investigation period. Because the statutes 

are silent on those issues, and because the Commission, together with the Commerce 

Department, is charged with the responsibility of administering the antidumping and 

countervailing duty statutes, the Commission’s construction of those statutes is entitled 

to deference under the principles of Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984). See Comm. for Fairly Traded Venezuelan Cement v. United 

States, 372 F.3d 1284, 1289 & n.2 (Fed. Cir. 2004); Tx. Crushed Stone Co. v. United 

States, 35 F.3d 1535, 1540 (Fed. Cir. 1994); Suramerica de Aleaciones Laminadas v. 

United States, 966 F.2d 660, 665 & n.5 (Fed. Cir. 1992). 

We agree with the trial court that it was reasonable for the Commission to 

interpret the statutory language to permit it to accord different weight to imports during 

different portions of the period of investigation depending on the facts of each case. In 

particular, the Commission acted reasonably in construing the statutory language to 

permit it to focus on the most recent imports and pricing data. That construction is 

reasonable for several reasons. First, the purpose of antidumping and countervailing 

duty laws is remedial, not punitive or retaliatory, see Chaparral Steel Co. v. United 

States, 901 F.2d 1097, 1103-04 (Fed. Cir. 1990), and current data typically is the most 

pertinent in determining whether remedial measures are necessary, see Chr. Bjelland 

Seafoods A/S v. United States, 19 Ct. Int’l Trade 35, 44 n.22 (1995). Second, section 

1677(7)(B)(i) provides that, in making the material injury determination required by 

sections 1671d(b)(1) and 1673d(b)(1), the Commission shall consider, inter alia, the 

effects of the subject imports on domestic producers. Section 1677(7)(C)(iii) in turn 

requires the Commission, in determining the impact of the subject imports on domestic 
04-1373,-1374 8 

producers, to “evaluate all relevant economic factors which have a bearing on the state 

of the industry in the United States.” As the trial court explained, in most cases the 

most recent imports will have the greatest relevance to the current state of the domestic 

industry. Third, the Commission has broad discretion with respect to the period of 

investigation that it selects for purposes of making a material injury determination. As 

the Court of International Trade has explained, because the statute “does not expressly 

command the Commission to examine a particular period of time . . . the Commission 

has discretion to examine a period that most reasonably allows it to determine whether 

a domestic industry is injured by [less than fair value] imports.” Kenda Rubber Indus. 

Co. v. United States, 630 F. Supp. 354, 359 (Ct. Int’l Trade 1986). Since the 

Commission has broad discretion to choose the most appropriate period of time for its 

investigation, it would be nonsensical to hold that once the Commission has chosen an 

investigation period, it is required to give equal weight to imports throughout the period it 

has selected. For these reasons, both this court and the Court of International Trade 

have typically upheld the Commission’s exercise of its discretion to focus on imports 

during particular portions of the investigation period, especially imports during the most 

recent portion of that period. See Chaparral Steel, 901 F.2d at 1103; Taiwan 

Semiconductor Indus. Ass’n v. United States, 93 F. Supp. 2d 1283, 1294 n.13 (Ct. Int’l 

Trade 2000), aff’d, 266 F.3d 1339 (Fed. Cir. 2001); Angus Chem. Co. v. United States, 

944 F. Supp. 943, 947-48 (Ct. Int’l Trade 1996), aff’d, 140 F.3d 1478 (Fed. Cir. 1998). 

In this case, the fact that section 201 tariffs were imposed during the period of 

investigation made the recent data far more probative than earlier data as to whether 

the industry was suffering present material injury as a result of imports. The 
04-1373,-1374 9 

Commission found that the section 201 relief “was having a major impact in the U.S. 

market for cold-rolled steel and was the overwhelming factor in the sharp decline in 

subject imports during the most recent period examined.” Substantial evidence in the 

record supports that finding, and the appellants do not challenge the trial court’s 

determination in that regard. Because the imposition of section 201 tariffs had such a 

dramatic impact on the industry, it was reasonable for the Commission to conclude that 

the most recent data was the most reliable indicator of whether the industry was 

suffering material injury as a result of the subject imports and whether the imposition of 

additional duties would be consistent with the remedial purposes of the antidumping and 

countervailing duty laws. 

The appellants argue that the Commission did not simply assign greater weight 

to current imports, but that it improperly focused exclusively on current imports and 

failed to give any consideration to whether the domestic industry was suffering material 

injury by reason of past imports. They contend that the record does not support the trial 

court’s conclusion that the Commission examined imports over the entire investigation 

period in making its determination that the subject imports were not causing present 

material injury. 

In making the statutory determination that the domestic cold-rolled steel industry 

was not suffering material injury by reason of the subject imports, the Commission 

explained that it focused principally on “the current volume of subject imports and the 

increase in domestic prices in 2002.” The Commission concluded that the present 

condition of the domestic industry was not “attributable in any material respect to the 

current subject imports” and that “subject imports are not adversely affecting domestic 
04-1373,-1374 10 

prices to a significant degree.” Its ultimate finding was that there was no “material injury 

currently being experienced by the domestic industry . . . by reason of the subject 

imports,” i.e., the imports during the period of investigation. The Commission thus 

explained that its material injury determination, although focusing mainly on current 

imports, was not restricted solely to current imports but encompassed all “subject 

imports” during the investigation period. 

The appellants do not argue that past imports continued to cause material injury 

at the end of the investigation period because of accumulated inventories. Nor could 

they, as the evidence showed that by the end of that period there were widespread 

supply shortages in the industry, and many producers had been placed on allocation. 

Instead, the appellants argue that the Commission ignored the continuing price effects 

of earlier imports resulting from the fact that the prices set in contracts made earlier in 

the period of investigation were generally “locked in” at the time of contract formation 

and continued in effect throughout the later portions of the investigation period. 

Contrary to the appellants’ contention, however, the Commission took those facts into 

consideration; it simply did not find that they were sufficiently important to alter the 

ultimate material injury determination. Thus, the Commission noted that past imports 

“continue[d] to have an effect on the industry’s contract prices negotiated before the 

Section 201 relief was effective,” but it nonetheless concluded that imports were not 

adversely affecting domestic prices to a significant degree “based on the current volume 

of subject imports and the increase in domestic prices in 2002.” In light of that 

statement and other portions of the Commission’s opinion, the trial court ruled that 

although the Commission did not explicitly state that earlier imports were not causing 
04-1373,-1374 11 

present material injury, it was reasonable to infer that the Commission so concluded. In 

particular, the trial court rested its conclusion with respect to that issue on what it 

referred to as the Commission’s “continued discussion of the effects that subject imports 

entered earlier in the [period of investigation] had on the domestic industry and its 

ultimate conclusion that the domestic industry was not suffering present material injury.” 

We concur in the trial court’s analysis. The Commission may not have stated 

explicitly that earlier imports were not causing material injury, but that conclusion was 

implicit in its analysis. The clear implication of the Commission’s findings on that issue 

is that the prices fixed by contracts that were negotiated earlier in the investigation 

period may have suppressed the overall average price of domestic products throughout 

the period, but in light of the decrease in the current volume of imports and the increase 

in domestic prices in 2002, the effect of those past imports was not significant. We 

therefore uphold the trial court’s decision with regard to the adequacy of the 

Commission’s treatment of the subject imports from early in the investigation period. 

III 

 Nucor argues that the Commission failed to make the statutorily required 

determination regarding the effect of underselling of domestic products by importers. 

The statute requires that in considering the effect of imports on prices, 

the Commission shall consider whether— 

 (I) there has been significant price underselling by the imported 

merchandise as compared with the price of domestic like products of the 

United States, and 

 (II) the effect of imports of such merchandise otherwise depresses 

prices to a significant degree or prevents price increases, which otherwise 

would have occurred, to a significant degree. 
04-1373,-1374 12 

19 U.S.C. § 1677(7)(C)(ii). Nucor argues that in analyzing underselling by the subject 

imports, the Commission failed to satisfy its statutory obligation to analyze underselling 

and price suppression separately. 

The trial court held that the Commission had complied with the requirements of 

section 1677(7)(C)(ii). As the court noted, the Commission compared underselling 

margins in 1999 with underselling margins in 2002, and it found that “most of the 

underselling occurred earlier in the period examined, prior to the imposition of Section 

201 relief.” The court ruled that it was reasonable for the Commission to compare 

underselling margins in 1999 to those in 2002 and that the Commission had discretion 

to choose the method it used to make its determination as to the significance of 

underselling. 

Nucor contends that the Commission did not properly assess the significance of 

underselling because it “failed to provide either a concrete conclusion regarding the 

significance of underselling or any meaningful discussion of several key components 

required for such a conclusion.” In particular, Nucor objects that the Commission never 

made a determination as to whether the level of underselling during the period of 

investigation was significant and that it failed to make separate determinations as to 

underselling and the effect of imports in depressing prices or preventing price increases. 

Because the Commission did not make separate findings with respect to those issues, 

Nucor argues that the decision cannot be sustained. 

The Commission complied with the statutory requirement that it consider whether 

there had been underselling during the investigation period and whether that 

underselling was significant. The Commission found that the underselling margins of 
04-1373,-1374 13 

1999 had essentially disappeared by 2002. In particular, the Commission found that the 

average margin of underselling went from 9.1 percent in 1999 to an average overselling 

margin of 4.0 percent in 2002, and that for sales to end users the average underselling 

went from 24.8 percent in 1999 to 1.5 percent in 2002. It is true, as Nucor contends, 

that the Commission did not state in so many words that the volume of underselling was 

an insignificant factor in evaluating whether the effect of imports on prices had led to 

present material injury to the domestic industry. Nonetheless, the trial court found that 

to be the plain import of the Commission’s analysis, and we agree. Where an agency 

has not made a particular determination explicitly, the agency’s ruling nonetheless may 

be sustained as long as “the path of the agency may be reasonably discerned.” 

Ceramica Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed. Cir. 1987), 

quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 

(1974). In this case, the agency’s path is clear, even though it did not set forth its 

conclusion as to the issue of underselling explicitly. 

Nucor objects to the trial court’s reliance on Ceramica on the ground that 

Ceramica addressed an issue of methodology, rather than a mandatory statutory 

determination. However, Nucor cites no authority for its conclusion that the court may 

not uphold an agency’s statutory determination “of less than ideal clarity,” and nothing in 

Ceramica indicates that the principle is limited to issues of methodology. 

In Altx, Inc. v. United States, 167 F. Supp. 2d 1353, 1365 (Ct. Int’l Trade 2001), 

aff’d, 370 F.3d 1108 (Fed. Cir. 2004), the Court of International Trade held that the 

Commission was required to make two distinct determinations, one for each prong of 

section 1677(7)(C)(ii), and that it could not “simply refer to its conclusion regarding the 
04-1373,-1374 14 

effect of underselling on price depression and/or suppression as a basis for finding 

underselling not to be significant.” Nucor argues that the Commission violated that 

principle by conflating the two prongs of the price effects analysis. In fact, however, the 

Commission discussed underselling separately from its discussion of price depression 

and suppression. The Commission thus did not conflate the two prongs of section 

1677(7)(C)(ii). 

Nucor next argues that in prior cases the Commission has explicitly addressed 

the significance of underselling and that its failure to do so in this case violates the 

principle that when an agency deviates from a longstanding practice, it must explain 

why it has done so. See Sec’y of Agric. v. United States, 347 U.S. 645, 652-53 (1954); 

British Steel PLC v. United States, 127 F.3d 1471, 1475 (Fed. Cir. 1997). Nucor, 

however, has not established that the Commission deviated from a longstanding 

practice of addressing underselling in a particular way in its final determinations. 

Rather, as the trial court noted, the Commission “has recognized that each injury 

investigation is sui generis, involving a unique combination and interaction of many 

economic variables; and consequently, a particular circumstance in a prior investigation 

cannot be regarded by the [Commission] as dispositive of the determination in a later 

investigation.” We agree with the trial court that the Commission’s determinations in 

other 2002 investigations do not detract from the reasonableness of the Commission’s 

analysis of underselling in this case. 

Finally, Nucor contends that the Commission erred by ignoring the volume of 

current underselling, which in the first quarter of 2002 increased to its highest level 

since the third quarter of 1999. As the trial court noted, however, the volume of 
04-1373,-1374 15 

underselling in the second quarter of 2002 decreased to zero, and the Commission was 

not “obligated to conduct a price comparison analysis that accounts for variations in 

sales volumes.” Nippon Steel Corp. v. United States, 182 F. Supp. 2d 1330, 1341 (Ct. 

Int’l Trade 2001). There is no indication that the Commission failed to consider the 

volume of underselling during each quarter, and we agree with the trial court that the 

underselling data for the first quarter of 2002 does not undermine the Commission’s 

conclusion as to the absence of significant underselling. 

IV 

Nucor next challenges the Commission’s determinations regarding the volume 

and price effects of imports on the domestic industry. Nucor again asserts that the 

Commission impermissibly focused only on current imports from the period after the 

section 201 remedy. We have already addressed the issue of the Commission’s focus 

on the most recent imports in making its material injury determination, and we have 

upheld the Commission’s decision in that regard. As we noted in the course of that 

discussion, although the Commission focused principally on the most recent imports, it 

considered all the subject imports in making its material injury determination and 

concluded that “any material injury being experienced by the domestic industry [is not] 

by reason of the subject imports.” As noted, the trial court held that substantial 

evidence supported the Commission’s finding that the subject imports did not suppress 

or depress domestic prices, even in light of the evidence that some existing contracts 

with lower pricing continued to be honored during the period of investigation, and we 

uphold the trial court’s decision in that regard. Our resolution of that issue answers 
04-1373,-1374 16 

Nucor’s contention that the Commission failed to determine whether past imports had 

caused present material injury to the domestic industry. 

Nucor further contends the Commission had a statutory obligation to distinguish 

between the effects of the section 201 relief and the effects that the filing of the 

antidumping and countervailing duty petitions had on the most recent import data. The 

relevant statutory provision, 19 U.S.C. § 1677(7)(I), states: 

Consideration of post-petition information. The Commission shall consider 

whether any change in the volume, price effects, or impact of imports of 

the subject merchandise since the filing of the petition in an investigation 

under [19 U.S.C. §§ 1671-1671h and 1673-1673h] is related to the 

pendency of the investigation and, if so, the Commission may reduce the 

weight accorded to the data for the period after the filing of the petition in 

making its determination of material injury, threat of material injury, or 

material retardation of the establishment of an industry in the United 

States. 

That provision requires the Commission to consider whether changes in the industry are 

related to the pendency of an antidumping or countervailing duty investigation, although 

it gives the Commission discretion in determining how to assess post-filing information. 

The Statement of Administrative Action issued in connection with the Uruguay Round of 

the General Agreement on Tariffs and Trade is to the same effect. See Uruguay Round 

Agreements Act: Statement of Administrative Action, H.R. Doc. No. 103-316, Vol. 1, at 

853-54 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4186. 

The Commission specifically adverted to the change in import volumes following 

the filing of the petitions and found that “both the pending investigations and the Section 

201 investigation had an impact on subject import volumes.” Based on its analysis of 

the data, however, the Commission concluded that the section 201 relief “fundamentally 

altered the U.S. market for cold-rolled steel and was the most significant factor in the 
04-1373,-1374 17 

decline of subject imports.” The Commission thus explicitly found that the section 201 

remedy recommendations and the imposition of section 201 tariffs was more significant 

than the effect of the pendency of the antidumping and countervailing duty 

investigations. The Commission’s analysis therefore satisfied the statutory requirement 

that it consider the effects of the subject antidumping and countervailing duty 

investigations on the volume of imports, their price effects, and their impact on the 

domestic industry. 

In sum, the Commission’s findings on the statutory issue of material injury by 

reason of imports and on the various subsidiary issues could have been more explicit, 

and the Commission’s analysis of the reasons for its findings could have been more 

detailed. Nonetheless, as the trial court correctly ruled, judicial review of an agency’s 

findings does not demand expansive discussion or rigid adherence to a specific formula, 

as long as the court can determine that the statutory requirements have been satisfied. 

Because we do not agree with the appellants’ contention that the Commission failed to 

comply with several essential requirements of the antidumping and countervailing duty 

statutes, we affirm the trial court’s ruling upholding the Commission’s determination. 

AFFIRMED.