Slip Op. 08-74

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________

:

NUCOR CORPORATION, :

:

Plaintiff, :

:

v. :

: Court No.

UNITED STATES, : 07-00070

:

Defendant, :

:

and :

:

CORUS GROUP PLC, AG DER DILLINGER :

HÜTTENWERKE, SALZGITTER AG STAHL UND :

TECHNOLOGIE, THYSSENKRUPP STEEL AG, :

COMPANHIA SIDERÚRGICA PAULISTA, :

USINAS SIDERÚRGICAS DE MINAS GERAIS SA, :

and DUFERCO STEEL, INC., :

:

Defendant-Intervenors. :

________________________________________:

Held: Plaintiff’s motion for judgment upon the agency record

denied. The United States International Trade Commission’s final

determination affirmed. 

Wiley Rein LLP, (Alan H. Price; Timothy C. Brightbill) for

Plaintiff, Nucor Corporation.

James M. Lyons, General Counsel; Neal J. Reynolds, Assistant

General Counsel, Office of the General Counsel, United States

International Trade Commission (Mary J. Alves; David B. Fishberg),

for Defendant, United States.

Steptoe & Johnson LLP, (Gregory S. McCue; Richard O.

Cunningham; Michael A. Pass) for Defendant-Intervenor, Corus Group

PLC. 
Court No. 07-00070 Page 2

1 19 U.S.C. § 1675(c)(1) provides:

5 years after the date of publication of . . . a

countervailing duty order . . . an antidumping duty

order . . . the Commission shall conduct a review

to determine, in accordance with section 1675a of

this title, whether revocation of the

countervailing or antidumping duty order . . .

would be likely to lead to continuation or

recurrence of dumping or a countervailable subsidy

. . . and of material injury. 

DeKieffer & Horgan, (Marc E. Montalbine; J. Kevin Horgan;

Merritt R. Blakeslee) for Defendant-Intervenors, AG der Dillinger

Hüttenwerke, Salzgitter AG Stahl und Technologie and ThyssenKrupp

Steel AG. 

Vinson & Elkins LLP, (Christopher A. Dunn; Valerie S. Ellis)

for Defendant-Intervenors, Companhia Siderúrgica Paulista

(“COSIPA”) and Usinas Siderúrgicas De Minas Gerais SA

(“USIMINAS”). 

Dated: July 9, 2008

OPINION 

This matter is before the Court on motion for judgment upon

the agency record brought by plaintiff Nucor Corporation (“Nucor”

or “Plaintiff”) pursuant to USCIT Rule 56.2. Plaintiff challenges

aspects of the negative final determination by the United States

International Trade Commission (“Commission” or “ITC”) in the fiveyear sunset reviews pursuant to 19 U.S.C. § 1675(c)(1)1 concerning

cut-to-length (“CTL”) steel plate products from Belgium, Brazil,

Finland, Germany, Mexico, Poland, Romania, Spain, Sweden, Taiwan

and the United Kingdom. 
Court No. 07-00070 Page 3

JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c)

(2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and (B)(iii) (2000).

BACKGROUND

Plaintiff Nucor challenges the Commission’s negative final

determination in the five-year “sunset” reviews concerning CTL

steel plate products from Belgium, Brazil, Finland, Germany,

Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United

Kingdom.

On November 1, 2005, the Commission instituted five-year

sunset reviews of the countervailing duty order and antidumping

duty orders on certain carbon steel flat products from eleven

subject countries. See Certain Carbon Steel Products From

Australia, Belgium, Brazil, Canada, Finland, France, Germany,

Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and

the United Kingdom, 70 Fed. Reg. 62,324 (Oct. 31, 2005). Effective

February 6, 2006, the Commission determined to conduct full reviews

pursuant to section 751(c)(5) of the Tariff Act of 1930, 19 U.S.C.

§ 1675(c)(5). See Certain Carbon Steel Products From Australia,

Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea,

Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United

Kingdom, 71 Fed. Reg. 8,874 (Feb. 21, 2006).

The final determination was issued by the Commission on
Court No. 07-00070 Page 4

January 25, 2007 and was published in the Federal Register on

January 31, 2007. See Certain Carbon Steel Products From

Australia, Belgium, Brazil, Canada, Finland, France, Germany,

Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and

the United Kingdom, 72 Fed. Reg. 4,529 (Jan. 31, 2007). The

determinations and views of the Commission are contained in Certain

Carbon Steel Products From Australia, Belgium, Brazil, Canada,

Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania,

Spain, Sweden, Taiwan, and the United Kingdom, Confidential Views

of the Commission (“Views”), Invs. Nos. AA 1921-197 (Second

Review); 701-TA-319, 320, 325-327, 348 and 350 (Second Review); and

731-TA-573, 574, 576, 578, 582-587, 612, and 614-618 (Second

Review), USITC Pub. No. 3899 (Jan. 2007).

In the final determination, the Commission determined that

revocation of the antidumping duty and countervailing duty orders

on subject countries would not be likely to lead to continuation or

recurrence of material injury to the domestic CTL plate industry.

The Commission also determined to decumulate subject imports from

Romania upon finding that such subject imports would likely compete

in the U.S. market under different conditions of competition from

other subject imports. See Views at 4. In addition, the

Commission determined that the volume of cumulated subject imports

from the remaining nine subject countries (“cumulated subject

countries”) would not be significant should the orders be revoked,
Court No. 07-00070 Page 5

2 Nucor does not object to the Commission’s determination

to decumulate Mexico.

and that revocation of the orders would not result in any

significant price effects and would not likely have a significant

impact on the domestic industry within the reasonably foreseeable

future. See id.

Plaintiff challenges each of these determinations arguing

that they are unsupported by substantial evidence and otherwise

contrary to law.2 See R. 56.2 Mot. And Supporting Br. Of Nucor

Corp. (“Pl.’s Br.”) at 4. The Commission responds that its

negative sunset determinations are supported by substantial

evidence and otherwise in accordance with law and requests that the

Court affirm them. See Mem. Of Def. United States International

Trade Commission In Opp’n To Pl.’s Mot. For J. On The Agency R.

(“ITC Mem.”) at 1. Defendant–Intervenors’ arguments are not

addressed separately where they parallel those of the Commission.

See Resp. Of Defendant–Intervenors Corus Group, PLC, AG der

Dillinger Hüttenwerke, Salzgitter AG Stahl und Technologie and

ThyssenKrupp Steel AG, In Opposition to Pl.’s Mot. For J. On the

Agency R. (“German-UK Resp. Br.”); Resp. Of Defendant–Intervenors

Companhia Siderúrgica Paulista (“COSIPA”) and Usinas Siderúrgicas

De Minas Gerais SA (“USIMINAS”) To Pl.’s R. 56.2 Mot. (“COSIPA &

USIMINAS Resp. Br.”).
Court No. 07-00070 Page 6

STANDARD OF REVIEW

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

court shall hold unlawful any determination, finding, or conclusion

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

record, or otherwise not in accordance with law.” 19 U.S.C. §

1516a(b)(1)(B)(i). “Substantial evidence is more than a mere

scintilla.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

“Substantial evidence is ‘such relevant evidence as a reasonable

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

Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374

(Fed. Cir. 2003) (quoting Consol. Edison Co., 305 U.S. at 229). In

determining the existence of substantial evidence, a reviewing

court must consider “the record as a whole, including evidence that

supports as well as evidence that ‘fairly detracts from the

substantiality of the evidence.’” Huaiyin, 322 F.3d at 1374

(quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562

(Fed. Cir. 1984)). 

DISCUSSION

I. Statutory Framework

The Commission and Commerce are required to conduct sunset

reviews five years after publication of an antidumping duty or

countervailing duty order or a prior sunset review. See 19 U.S.C.

§ 1675(c)(1). In a five year sunset review of an antidumping duty
Court No. 07-00070 Page 7

or countervailing duty order, the Commission determines “whether

revocation of an order . . . would be likely to lead to

continuation or recurrence of material injury within a reasonably

foreseeable time.” 19 U.S.C. § 1675a(a)(1). 

In a sunset review, the Commission has discretion to

cumulatively assess the volume and effect of subject imports from

several countries for purposes of the material injury analysis, so

long as certain threshold requirements are met. See Nippon Steel

Corp. v. United States, 494 F.3d 1371, 1374 n. 4 (Fed. Cir. 2007)

(citing 19 U.S.C. § 1675a(a)(7)). In addition, “[w]hen conducting

a sunset review, the Commission is obligated to consider ‘the

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

merchandise on the industry if the order is revoked.’” Nippon

Steel, 494 F.3d at 1380 (quoting 19 U.S.C. § 1675a(a)(1)). 

II. Cumulation In Five Year Reviews

The Commission’s statutory authority for cumulation is set out

in 19 U.S.C. § 1675a(a)(7), which provides that:

[T]he Commission may cumulatively assess the volume and

effect of imports of the subject merchandise from all

countries with respect to which reviews under section

1675(b) or (c) of this title were initiated on the same

day, if such imports would be likely to compete with each

other and with domestic like products in the United

States market. The Commission shall not cumulatively

assess the volume and effects of imports of the subject

merchandise in a case in which it determines that such

imports are likely to have no discernible adverse impact

on the domestic industry. (emphasis added). 

Pursuant to this statutory authority, the Commission declined
Court No. 07-00070 Page 8

3 The ten subject countries considered here by the

Commission excludes the eleventh subject country Mexico. The

Commission found that subject imports from Mexico would have no

discernable adverse impact, therefore it was unnecessary for the

Commission to “decide the issue of the likelihood of a reasonable

overlap of competition with respect to subject imports from this

country.” Views at 47.

to cumulate subject imports from Romania upon finding that they are

not likely to compete with other subject imports and with the

domestic like product. See Views at 43. In refraining from

cumulating subject imports from Romania, it considered the four

conditions of competition: (1) fungibility, (2) sales or offers in

the same geographic markets, (3) common or similar channels of

distribution, and (4) simultaneous presence. See id. at 47. In

addition, the Commission considered “other considerations, such as

similarities and differences in the likely conditions of

competition of the subject imports with regard to their

participation in the U.S. market for CTL plate.” Id. at 50. 

With respect to the four conditions of competition, the

Commission found that subject imports from these ten subject

countries, Belgium, Brazil, Finland, Germany, Poland, Romania,

Spain, Sweden, Taiwan and the United Kingdom,3 would be

sufficiently fungible, move in the same channels of distribution,

and compete in the same geographic markets during the same periods.

See id. at 47-49. The Commission thus concluded that there would

likely be a reasonable overlap of competition among subject imports

and between these subject imports and the domestic like product in
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the event of revocation. See id. at 49.

Nevertheless, in considering other factors, the Commission

went on to find that the subject imports from Romania “would likely

compete under different conditions of competition than would those

from the remaining nine subject countries.” Id. at 49-51. In

doing so, the Commission stated that “[t]he sole CTL plate producer

in Romania [Mittal Steel Galati] is related to a major U.S.

producer [Mittal Steel USA], Romania has more excess capacity than

any other subject country, and it is the only subject country that

is subject to tariff barriers in third-country markets.” Id. at 4.

A. The Commission’s Decision Not To Cumulate Subject Imports From

From Romania Is Supported By Substantial Evidence And In

Accordance With Law

Nucor challenges the Commission’s determination to decumulate

subject imports from Romania arguing that the determination is

contrary to the statutory authority, and unsupported by substantial

evidence and otherwise contrary to law. Specifically, Nucor puts

forth the following two bases for its position. First, Nucor

argues that the Commission’s determination is inconsistent with the

purpose of the cumulation statute and is contrary to the evidence

of record. See Pl.’s Br. at 7. Second, contending that “the ‘four

conditions of competition’ examined by the Commission in its

cumulation analysis fail to provide a logical basis for its

determination,” Nucor argues that the determination to decumulate

is unsupported by substantial evidence and otherwise contrary to
Court No. 07-00070 Page 10

law. Id. at 12. For the reasons set forth below, the Court finds

that the Commission’s determination to decumulate subject imports

from Romania is supported by substantial evidence on the record.

i. The Commission’s decision not to cumulate subject imports from

Romania is not contrary to the purpose of the cumulation

provision

First, Nucor argues that “the Commission should cumulate

imports from all countries that it finds: (i) would likely have a

discernable adverse impact on the U.S. industry in the event of

revocation; and (ii) are likely to compete with each other and with

the domestic like product.” Pl.’s Br. at 9-10. Nucor submits that

because these two statutory requirements for cumulation are met

here, the Commission’s determination to decumulate Romanian imports

constitutes an abuse of discretion. See id. at 10-11.

Nucor goes on to argue that while the cumulation statute

provides some discretion, “[t]he Commission’s discretion is . . .

limited by its obligation to be cognizant of the material injury

that is inflicted on the U.S. industry by the simultaneous

importation of unfairly traded products from multiple countries,

and Congress’ purpose behind the cumulation provision, which is to

redress such ‘hammering effects.’” Id. at 10. According to Nucor,

“any decision not to cumulate subject imports ‘[must] be predicated

upon a judgment anchored in the language and spirit of the relevant

statutes and regulations.’” Id.

Nucor thus contends that the Commission erred by failing to
Court No. 07-00070 Page 11

cumulate when the two statutory requirements were met and by

failing to cumulate in light of “the congressional intent

underlying the cumulation provision.” Id. at 11. 

According to Nucor, the two statutory requirements are met.

With respect to the “discernable adverse impact,” the first prong,

Nucor states that although the Commission did not analyze this

issue, “the ‘four conditions of competition’ relied on by the

Commission in its cumulation analysis make it significantly more

likely that subject imports from Romania would compete with other

subject imports and the domestic like product in the U.S. market

and that such imports would have an adverse impact on the domestic

industry.” Id. at 11. Nucor also cites to Romania’s capacity,

capacity utilization rates, excess capacity, tariff barriers in

other North American markets and other operational differences

between Mittal Steel USA and Mittal Steel Galati, and contend that

they “all point to significant U.S. imports of Romanian plate upon

revocation.” Id.

Nucor contends that the second prong, the likelihood of

overlap of competition, is met because the Commission acknowledged

that subject imports from Romania and from other subject countries

would be fungible, move in the same channels of distribution, and

compete in the same geographic markets during the same periods.

See id. at 11.

In support of its argument that the Commission’s determination
Court No. 07-00070 Page 12

to decumulate subject imports from Romania is contrary to the

legislative intent of the cumulation provision, Nucor argues that

“subject imports from Romania are likely to have exactly the

deleterious ‘hammering’ effect on the domestic industry that

Congress sought to prevent.” Id. Nucor contends that, in addition

to the four conditions of competition, “the data show that Romania

was the single most volatile country in terms of subject imports

during the period of review, demonstrating the ability to rapidly

increase or decrease exports to the United States in reaction to

market conditions.” Id. at 11-12. Thus, Nucor states that “[i]f

Romanian producers were unconstrained by antidumping orders, it is

particularly evident that they would again export significant

quantities of subject merchandise to the U.S. market given their

prior volatility.” Id. at 12.

The Commission responds that its statutory authority to

cumulate subject imports is discretionary in nature, and therefore,

it is not required to cumulate even upon finding (1) “a discernible

adverse impact on the domestic industry” and (2) subject imports

are “likely to compete with each other and with domestic like

products.” ITC Mem. at 12. Moreover, the Commission states that

it “has wide latitude in selecting the types of factors it

considers relevant” in its cumulation analysis. Id. at 13. Within

such a statutory framework, the Commission contends that its

determination to decumulate subject imports from Romania was “fully
Court No. 07-00070 Page 13

consistent with the plain language of the statute and this Court’s

decisions.” Id. In support, the Commission states that it

considered Romania’s capacity and capacity utilization data and

“identified differences between the Romanian imports and other

subject imports, such as the existence of third country barriers to

trade for the Romanian products and the recent affiliation of the

sole Romanian producer with a significant domestic producer.” Id.

The Commission refutes Nucor’s argument that the Commission’s

determination is contrary to the purpose of the cumulation

provision (i.e., to prevent “hammering effects”) by pointing to

data reflecting a decrease in the volume of U.S. imports from

Romania subsequent to the corporate affiliation of Mittal Steel USA

and Mittal Steel Galati. See id. at 14.

“Cumulation is discretionary in five-year reviews commenced

under section 1675(c), provided that the reviews are initiated on

the same day and the ITC determines that the subject imports are

likely to compete both with each other and the domestic like

product in the United States.” Allegheny Ludlum Corp. v. United

States, 475 F. Supp. 2d 1370, 1375, 30 CIT __, __ (2006); Statement

of Administrative Action, (“SAA”) accompanying H.R. Rep. No.

103-826(I), at 887, reprinted in 1994 U.S.C.C.A.N. 4040, 4212

(Noting that “[n]ew section 752(a)(7) [1675a(a)(7)] grants the

Commission discretion to engage in a cumulative analysis.”). The

purpose of the cumulation provision is “to stem ‘competition from
Court No. 07-00070 Page 14

4 See 19 U.S.C. § 1675a(a)(7).

unfairly traded imports from several countries simultaneously

[which] often has a hammering effect on the domestic industry . .

. [that] may not be adequately addressed if the impact of the

imports are [sic] analyzed separately on the basis of their country

of origin.” H.R. Rep. No. 100-40, part 1, at 130 (1987). 

The Commission “has wide latitude in selecting the types of

factors it considers relevant” in its cumulation analysis.

Allegheny, 475 F. Supp. 2d at 1380, 30 CIT at __. However, the

Commission’s “exercise of discretion [must] be predicated upon a

judgment anchored in the language and spirit of the relevant

statutes and regulations.” Id. at 1370 (quoting Freeport Minerals

Co. v. United States, 776 F.2d 1029, 1032 (Fed. Cir. 1985)). 

The Court agrees with the Commission’s analysis and finds the

Commission’s determination to decumulate subject imports from

Romania fully consistent with the cumulation provision and this

Court’s decisions. Although the parties do not dispute that the

Commission’s statutory authority to cumulate is discretionary,

Nucor suggests that failure to cumulate when the two statutory

requirements for cumulation are met is contrary to statutory

authority. If Nucor’s argument is true, then the Commission could

never determine not to cumulate when the two requirements are met.

Such a reading of the statute is untenable as it would be contrary

to the plain language of the cumulation provision4

 and would
Court No. 07-00070 Page 15

5 Specifically, the Commission found that (1) “the

corporate affiliation between Mittal Steel Galati and Mittal

Steel USA will make it likely that ‘decisions as to how Mittal

Steel Galati will respond to revocation of the antidumping duty

order will be made at the corporate level with the best interest

of the U.S. affiliate in mind.’”; (2) Romanian capacity data

showed a different trend from that of other subject countries;

(3) Romania was the only subject country facing tariff barriers

in third-country markets as the basis for decumulation. Views at

50-51. As discussed in further detail in section ii infra, the

Court finds these findings to be supported by substantial

evidence on the record.

destroy any actual discretion of the Commission. 

Moreover, the Court agrees with the Commission’s finding that

the two statutory requirements were not met here. Although the

Commission found a reasonable overlap of competition upon analysis

of the four conditions of competition, it also determined, upon

consideration of other factors, that subject imports from Romania

would compete under different conditions of competition.5

 

The Court is also unconvinced that the Commission’s

determination is contrary to the legislative intent of preventing

hammering effects. Although Romania’s volatility with respect to

subject imports may be a relevant factor to be considered, it is

insufficient to invalidate the Commission’s detailed cumulation

analysis supported by record evidence, including, inter alia, data

reflecting a decrease in the volume of exports from Romania

subsequent to the corporate affiliation of Mittal Steel USA and

Mittal Steel Galati. The Court is similarly unconvinced by Nucor’s

hammering effects argument since the Commission majority found that
Court No. 07-00070 Page 16

6 Moreover, the two Commissioners who cumulated imports

from Romania with other subject imports still found that

revocation would not likely lead to a recurrence of injury. See

Views at 93.

even if it had exercised its discretion to cumulate all subject

imports, including from Romania, it still would have reached

negative determinations for all eleven countries in these reviews.6

See Views at 51 n. 255.

In sum, the Court finds that the Commission’s determination to

decumulate imports from Romania is not contrary to the purpose of

the cumulation provision and is supported by substantial evidence.

ii. The Commission’s subsidiary findings are supported by

substantial evidence and in accordance with law

Nucor alternatively argues that the Commission’s determination

to decumulate subject imports from Romania is unsupported by record

evidence and challenges the following subsidiary findings: (1)

that “the corporate affiliation between Mittal Steel Galati and

Mittal Steel USA will make it likely that ‘decisions as to how

Mittal Steel Galati will respond to revocation of the antidumping

duty order will be made at the corporate level with the best

interest of the U.S. affiliate in mind,’” Pl.’s Br. at 13; (2)

“that capacity in subject countries declined or was flat during the

period of review,” id. at 16; and (3) relying on the fact that

Romania was the only subject country facing tariff barriers in

third-country markets as the basis for decumulation, see id. at 17.

As discussed in further detail infra, Nucor points to record
Court No. 07-00070 Page 17

evidence purporting to support its positions, but the record is

replete with data supporting the Commission’s conclusion that

subject imports from Romania would likely compete under different

conditions of competition than would those from the nine cumulated

subject countries. Of course, the Court may not “displace the

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

the court would justifiably have made a different choice had the

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

340 U.S. 474, 488 (1951). As such, the Court affirms the

Commission’s determination.

(a) The Commission’s finding that Mittal Steel Galati’s

corporate affiliation with Mittal Steel USA is a

condition of competition which distinguishes Romania from

the other subject countries is supported by substantial

evidence and in accordance with law

With respect to Mittal Steel Galati’s corporation affiliation,

the Commission majority stated that:

[t]he Romanian CTL plate industry has undergone

significant changes since the original investigations and

the first five-year reviews that distinguish it from the

CTL plate industries in the other subject countries.

Most importantly, since April 2005, the lone Romanian

producer of CTL plate has been in the same corporate

group as a major U.S. producer of CTL plate. During the

original investigations, the Commission identified two

state-owned Romanian producers of CTL plate, Sidex SA

Galati and Metalexportimport. During the first reviews,

there remained only one producer, Sidex. Since the first

five-year reviews, Sidex was privatized and purchased in

2001 by LNM Holdings, which eventually brought the

company under the control of the multinational Mittal

Group of steel companies. The Romanian producer now

operates under the name Mittal Steel Galati. As of April

2005, Mittal Steel Co., NV purchased the assets of U.S.
Court No. 07-00070 Page 18

CTL plate producer International Steel Group (“ISG”),

thereby creating Mittal Steel USA, which consequently is

now affiliated with its Romanian sister company Mittal

Steel Galati. This newly arising corporate affiliation

between Mittal Steel Galati and Mittal Steel USA will

make it likely that decisions as to how Mittal Steel

Galati will respond to revocation of the antidumping duty

order will be made at the corporate level with the best

interest of the U.S. affiliate in mind. Views at 50. 

Nucor contends that the Commission erred in relying on the

corporate affiliation between Mittal Steel Galati and Mittal Steel

USA as the basis for its finding that “decisions as to how Mittal

Steel Galati will respond to revocation of the antidumping duty

order will be made at the corporate level with the best interest of

the U.S. affiliate in mind.” Pl.’s Br. at 13. According to Nucor,

Mittal is likely to sell domestically produced plates when it can

do so at a profit and will import CTL plates from other Mittal

mills when that is profitable despite any corporate affiliation.

See id. “That Mittal owns mills in both the United States and

Romania does not provide any reason for assuming that Mittal will

not import CTL plate from Romania when it might be profitable to do

so.” Id.

In addition, Nucor states that certain differences in Mittal’s

U.S. and Romanian operations may allow them to avoid direct

competition. See id. Nucor contends that even if Mittal imports

from Romania do not compete with Mittal’s domestic production, they

would still compete with and injure other U.S. producers. See id.

at 14. Nucor suggests that the fact that Mittal vociferously
Court No. 07-00070 Page 19

7 Mittal’s participation in Commerce’s administrative

review cannot be interpreted as an indication of Mittal’s

intention to resume import to the U.S. The purpose of an

administrative review is to determine the amount of antidumping

duties to be assessed upon imports previously entered during the

applicable period of review. See 19 U.S.C. § 1675(a)(1)(B).

8 Although Nucor suggests that this decline in imports is

due to an increase in antidumping duty margins, see Pl.’s Br. at

13 n. 5, the margin increase that Nucor refers to occurred in

February 2006, not in March 2005 as Plaintiff erroneously states,

see Notice of Final Results of Antidumping Duty Administrative

Review and Final Partial Rescission: Certain Cut-to-Length Carbon

Steel Plate from Romania, 71 Fed. Reg. 7008 (Feb. 10, 2006). In

(continued...)

challenged its antidumping margins at the Commerce Department to

obtain a de minimis preliminary margin indicates an intention to

resume a sizable import to the U.S.7 See id. at 14. 

The Commission, however, carefully considered and addressed

Nucor’s arguments regarding Mittal Steel Galati and Mittal Steel

USA’s corporate affiliation and reasonably rejected them. See

Views at 88-91. The Commission states that “[t]he evidence on the

record supports the argument that these corporate realignments

largely explain the recent fall in the volume of subject exports

from Romania during the period of review.” Id. at 90.

Specifically, the Commission noted that “prior to Mittal’s

acquisition of ISG’s assets in April 2005, the volume of Romania’s

exports to the United States increased from 2000 to 2004.

Subsequently, the volume of those exports fell . . . from 2004 to

2005, and such volumes were sharply lower . . . in interim 2006

than . . . during interim 2005.”8 Id. Thus, the Commission went
Court No. 07-00070 Page 20

(...continued)

fact, the record shows that there was already a substantial

decrease in imports from Romania to the United States from 2004

to 2005, well before the increase in the antidumping duty margin

in 2006. See Confidential Staff Report, Confidential

Administrative R. Doc. No. 743 (“Staff Report”), CTL-IV-66. The

record also reflects a further decrease in imports from Romania

to the United States from 2005 to interim 2006. See id.

on to conclude that corporate affiliation between Mittal Steel

Galati and Mittal Steel USA “makes it unlikely that Mittal Steel

Galati will move aggressively to capture U.S. market share or sell

its products in a manner that would have a negative effect on the

prices that Mittal Steel USA receives.” Id.

The Commission also considered Nucor’s argument that the

differences in operations of Mittal Steel Galati and Mittal Steel

USA may allow them to avoid direct competition, but still compete

with and injure other U.S. producers. See id.; Pl.’s Br. at 14.

However, the Commission found credible a statement from Mittal’s

importing arm on this issue and found it to be consistent with the

amount of subject imports from Romania in interim 2006. See Views

at 50, 90-91. In addition, the Commission found that the fact that

Mittal Steel USA manufactures a full range of CTL plate products

would make it difficult for Mittal to avoid harm to its U.S.

operations should it choose to import from Romania. See id. at 91.

In comparison, Nucor’s position that Mittal’s corporate affiliation

would not restrain subject imports from Romania is merely

speculative and unsupported by record evidence.
Court No. 07-00070 Page 21

As such, the Court finds that the Commission’s finding that

Mittal Steel Galati’s corporate affiliation is a condition of

competition which distinguishes Romania from the other subject

countries is supported by substantial evidence on the record. 

(b) The Commission’s findings regarding Romania’s production

capacity is supported by substantial evidence and in

accordance with law

Nucor next objects to the Commission’s finding relating to

Romania’s production capacity as compared to those of other subject

countries, and to Romania’s level of capacity utilization. See

Pl.’s Br. at 15-16. Specifically, Nucor argues that the record

contradicts the Commission’s finding that production capacity is a

condition of competition that distinguishes subject imports from

Romania. See id. at 16. Nucor further argues that the Commission

erred by determining to decumulate subject imports from Romania

based upon Romania’s excess capacity data. See id. Nucor cites to

the Commission’s own Staff Report to support its contention that

Romania and other subject countries maintained excess capacity.

According to Nucor, these findings “instead of providing support

for [the Commission’s] decision to decumulate, [they] actually

confirm that subject imports from Romania would compete with other

subject imports and cumulatively produce a ‘hammering effect’ on

the domestic like product in the U.S. market.” Id.

As such, Nucor contends that the factors relied on by the

Commission in its cumulation analysis fail to provide a logical
Court No. 07-00070 Page 22

basis for its determination to decumulate subject imports from

Romania. See id. at 17. 

Nucor’s arguments lack merit. First, the Commission’s finding

on Romania’s production capacity as compared to that of the other

subject countries is more than amply supported by record evidence

as shown by a review of the relevant capacity data for the period

2000 through 2005. The Commission determined that “this type of

capacity [change] during the [period of review] was unique to the

Romanian industry, and provided another indication that Romanian

imports would compete under different conditions of competition

than other subject imports.” ITC Mem. at 16. The Court agrees

with the Commission’s analysis and finds that it is supported by

substantial evidence.

Second, the Commission accounted for excess capacity of the

other subject countries, but distinguished Romania based on the

extent of its excess capacity. See Views at 51. The Commission’s

finding is supported by substantial record evidence. Indeed, Nucor

does not challenge the accuracy of the Commission’s finding with

respect to Romania’s excess capacity, but contends that record

evidence does not provide a logical basis for the Commission’s

determination to decumulate subject imports from Romania. However,

the mere fact that Nucor would have drawn the opposite conclusion

based on the record evidence does not invalidate the Commission’s

finding when it is supported by substantial evidence on the record
Court No. 07-00070 Page 23

9 In addition, the Commission noted that the sole

Romanian producer, Mittal Steel Galati, lacked the incentive to

increase U.S. shipments because of its corporate affiliation with

Mittal Steel USA and that Romanian exports were increasingly

directed to the EU, a more attractive market in light of

Romania’s impending accession. See Views at 91.

as it is the case here. See Universal Camera, 340 U.S. at 488. 

(c) The Commission reasonably relied on the fact that Romania

was the only subject country facing tariff barriers in

third-country markets as a basis for decumulating subject

imports from Romania

Lastly, Nucor objects to the Commission’s reliance on the fact

that Romania was the only subject country facing tariff barriers in

third-country markets as a basis for decumulating subject imports

from Romania. See Pl.’s Br. at 17. Specifically, the Commission

stated that “Romania is the only subject country that faces tariff

barriers in third-country markets” and concluded that “[t]wo of

those countries with tariff barriers in place, Mexico and Canada,

limit Romania’s export markets in North America.”9 Views at 51.

Nucor on the other hand draws the conclusion that these tariff

barriers make it more likely to direct shipments to the U.S. See

Pl.’s Br. at 17. 

Although the conclusion Nucor draws may have some merit, the

Commission’s conclusion is not illogical as Nucor argues. Nucor

merely draws the opposite conclusion based on the record evidence,

which again is insufficient to invalidate the Commission’s finding.

See Universal Camera, 340 U.S. at 488. Thus, the Court finds that
Court No. 07-00070 Page 24

the Commission’s finding is supported by substantial evidence on

the record and in accordance with law.

III. Likely Volume, Price Effect, And Impact On The Industry

A. The Commission’s Findings Relating To Volume Of Cumulated

Subject Imports Are Supported By Substantial Evidence And In

Accordance With Law

Pursuant to 19 U.S.C. § 1675a(a)(1), the Commission must

evaluate “the likely volume, price effect, and impact of imports of

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

In addition, 19 U.S.C. § 1675a(a)(2) provides:

In evaluating the likely volume of imports of

the subject merchandise if the order is

revoked . . . the Commission shall consider

whether the likely volume of imports of the

subject merchandise would be significant if

the order is revoked . . . either in absolute

terms or relative to production or consumption

in the United States. In so doing, the

Commission shall consider all relevant

economic factors, including – 

(A) any likely increase in production

capacity or existing unused production

capacity in the exporting country,

(B) existing inventories of the subject

merchandise, or likely increases in

inventories,

(C) the existence of barriers to the

importation of such merchandise into

countries other than the United States,

and 

(D) the potential for product-shifting if

production facilities in the foreign

country, which can be used to produce the

subject merchandise, are currently being

used to produce other products.
Court No. 07-00070 Page 25

Put simply, the Commission must determine whether, considering

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

of the statute, it is “likely” that the volume of imports will be

“significant” if the unfair trade orders are revoked. See id.

“Thus, in accordance with the statute, in order to find sufficient

volume for there to be injury, the [Commission] must identify

substantial evidence from the record demonstrating that, should the

orders be revoked, it is likely that the volume of the subject

imports entering the U.S. market will be significant.” Nippon

Steel Corp. v. United States, 391 F. Supp. 2d 1258, 1275, 29 CIT

695, 712, (2005) (citing 19 U.S.C. § 1675a(a)(2)). 

In its Views, the Commission found that the volume of

cumulated subject imports would not likely be significant in the

event of revocation of the orders. See Views at 5. Plaintiff

Nucor disagrees and contends that the Commission relied on the

following erroneous subsidiary findings: (1) that developments in

China would not lead to increased subject imports to the U.S.

market; (2) that production capacity in subject countries was

insignificant, that capacity increases in the reasonably

foreseeable future were unlikely to be significant and that the

excess capacity of subject producers was insignificant; (3) that

demand for CTL plates in Europe and other markets was projected to

increase; and (4) that regional exports were not evidence of

subject producers’ export orientation. See Pl.’s Br. at 19.
Court No. 07-00070 Page 26

For the reasons set forth below, the Court finds that the

Commission’s findings relating to the volume of cumulated imports

are supported by substantial evidence on the record and in

accordance with law.

i. Subsidiary Findings

(a) The Commission’s conclusion that developments in China

would not lead to increased subject imports to the U.S.

market is supported by substantial evidence and in

accordance with law

Nucor objects to the Commission’s conclusion that developments

in China would not lead to increased subject imports to the U.S.

market. See Pl.’s Br. at 19-20. In connection with that

conclusion, the Commission found that: (1) “producers in these

subject countries do not rely on the Chinese market”; (2) there is

no “evidence that China has displaced subject producers in their

home or regional markets”; (3) “although there has been a large

increase in Chinese production over the period of review, future

increases in Chinese production and Chinese net CTL plate exports

are forecast to be more moderate.” Views at 74-75. Accordingly,

the Commission concluded that the argument that “developments in

China will likely lead to increased subject imports into the U.S.

market are too speculative” and stated that “if a displacement

effect were likely, we should already have seen it, and we have

not.” Id.

With respect to these subsidiary findings, Nucor complains
Court No. 07-00070 Page 27

10 Nucor states that “China went from a net import

position of 4.2 million metric tons in 2003 to an annualized net

export position of 3.3 million tons in 2006.” Pl.’s Br. at 21.

that the Commission failed to consider the administrative record in

its entirety, failed to explain the “overwhelming contrary

evidence” in reaching its conclusion and failed to consider

evidence material to Nucor’s arguments. Pl.’s Br. at 20.

Specifically, Nucor puts forth the following three arguments.

First, Nucor contends that “the Commission’s finding that

‘producers in subject countries do not rely on the Chinese market’

mischaracterizes [its] arguments and does not support the

Commission’s conclusions with respect to China.” Id. Nucor

explains that “China was a major market for subject producers -

importing more than one million tons from subject countries in

2003,” but “China’s plate production exploded and the country

emerged as a net exporter of plate in 2004-2005.” Id. Thus,

“[s]ubstantial volumes of plate from subject countries were

displaced from China.” Id. According to Nucor, more than 7.5

million metric tons of excess steel, including almost 2 million

tons from subject countries, was forced out of China onto the

global market.10 See id. at 21. Nucor suggests that the fact that

subject countries no longer rely on China as a primary export

market shows that a displacement effect has already occurred in

that the subject producers have already been shut out of the

Chinese market as a result of China becoming a net exporter of CTL
Court No. 07-00070 Page 28

plate. See id. As such, Nucor insists that the Commission’s

conclusion that producers in subject countries do not rely on the

Chinese market is unsupported by the record evidence. 

Second, Nucor asserts that the Commissions’ finding that there

is “no ‘evidence that China has displaced subject producers in

their home or regional markets’ is contradicted by the overwhelming

weight of the record evidence.” Id. In support of its finding,

the Commission stated that “the European Union already maintains

quantitative restrictions on steel products (including CTL plate)

from Russia, Ukraine, and Kazakhstan that prevent any surge in

imports from those countries into the European Union.” Views at

74, n. 415. Nucor argues that EU’s quantitative restrictions only

proves the importance of plate duties in the United States. Pl.’s

Br. at 21. According to Nucor, “the overwhelming weight of

evidence . . . demonstrates that China’s emergence as a net

exporter of plate displaced subject producers from China and

resulted in increasing volumes of Chinese plate exports to subject

countries and other markets.” Id. As such, Nucor argues that

“developments in China can impact subject imports . . . by

encroaching on their home markets, by displacing the exports of

subject producers from Asian markets, or by causing subject

producers to redirect excess inventories or capacity to the U.S.

market” and that “[a]ny of these supply shifts would increase the

likelihood and volume of subject imports returning to the United
Court No. 07-00070 Page 29

States upon revocation.” Id. at 22.

Nucor states that “developments in China adversely impacted

subject country markets such that an increase in exports to the

United States would be likely upon revocation.” See id. Nucor

points to evidence reflecting that Chinese plate exports to subject

countries increased more than 2,000 percent or roughly 1 million

tons from 2003 levels, and that other subject countries in Europe

faced increased competition from Chinese exports as well. See id.

at 22-23. In addition, Nucor cites to record evidence reflecting

that European plate prices decreased as a result of Chinese

exports, and Latin America experienced adverse impacts from Chinese

exports. See id. at 23-24. Moreover, Nucor notes that subject

countries were preparing antidumping claims against China at the

close of the record. See id. at 24. Nucor goes on to argue that

“the Commission’s sharp departure from its findings in the 2005

sunset review is also unjustified.” See id. at 25. 

Third, Nucor complains that “the Commission’s contention that

‘future increases in Chinese production and Chinese net CTL plate

exports are forecast to be more moderate’ is not only misplaced but

also contradicted by the record evidence.” Id. at 26. Instead,

Nucor argues that the Commission should have looked at the balance

between production and consumption in China in order to accurately

assess Chinese oversupply and the resulting growth in volume of

export. See id. Nucor contends that “China’s continued production
Court No. 07-00070 Page 30

of plate far in excess of demand was resulting in increased

exports, substantial excess plate and downward price pressures in

global markets.” Id. Citing to certain confidential data, Nucor

contends that “China continues to produce plate well in excess of

demand and indicates that this trend will continue for the

reasonably foreseeable future.” Id. at 27. 

Nucor contends that although the Commission stated in the 2005

sunset review of CTL plate that “global CTL plate capacity is

likely to grow at a rapid pace relative to global consumption over

the next several years, mainly due to developments in China” and

noted that China’s overcapacity is likely to persist for the

reasonably foreseeable future, the Commission failed to consider

this data in its final determination. Id. at 27-28. Nucor further

contends that the Commission failed to consider additional record

evidence indicating that Chinese plate exports would continue to

flood European and Latin American markets. See id. at 28-29.

The Commission disagrees and states that it responded to each

aspect of Nucor’s arguments and provided ample evidence showing

that the record did not support these claims. See ITC Mem. at 34.

The Court agrees with the Commission. Indeed, the record supports

the Commission’s position that it thoroughly considered each of

Nucor’s arguments and found against them. Specifically, the

Commission stated in the Views the following:

Domestic interested parties forecast large expansions in

global capacity, particularly in China, and project a
Court No. 07-00070 Page 31

growing imbalance between supply and demand. According

to record data, demand from China increased substantially

in recent years and contributed to increased prices both

globally and in the U.S. market. At least initially,

much of the increased demand was reportedly met by CTL

plate imported into China from other sources. As Chinese

producers continued to increase their production

capacity, by approximately 2005, China became a net

exporter of CTL plate. Although there has been a large

increase in Chinese production over the period of review,

future increases in Chinese production are not forecast

to be anywhere near as large, and the volume of China’s

net CTL plate exports is not expected to grow much beyond

the levels seen in 2006. Moreover, . . . record data do

not show any significant declines in prices in either the

U.S. or global markets associated with the change in

China’s status from a net importer to a net exporter in

2005 or the increase in its production relative to

consumption in 2006. Views at 63. 

The Commission went on to state:

Domestic interested parties assert that with China’s

recent transition from a net importer to a net exporter

of CTL plate, subject imports will be displaced from the

Chinese market and from their own home and third-country

markets. [They] assert that, as a result, there will

likely be increased subject imports into the U.S. market

in the event of revocation. In contrast to the producers

in the cumulated countries involved in the 2005 CTL plate

review, . . . producers in these subject countries do not

rely on the Chinese market. Nor is there evidence that

China has displaced subject producers in their home or

regional markets. Instead, record data indicates that

subject producers have recently shipped larger volumes to

their home and regional markets. Moreover, although

there has been a large increase in Chinese production

over the period of review, future increases in Chinese

production and Chinese net CTL plate exports are forecast

to be more moderate. In sum, if a displacement effect

were likely, we should already have seen it, and we have

not. Therefore, we do not expect a displacement effect

in the reasonably foreseeable future. Id. at 74-75

(footnotes omitted).

The Court is satisfied with the Commission’s analysis and its

explanation. Moreover, the Court finds no merit to Nucor’s first
Court No. 07-00070 Page 32

argument that the Commission’s conclusion that producers in subject

countries do not rely on the Chinese market is unsupported by the

record evidence. Indeed, the Commission specifically addressed

Nucor’s argument and acknowledged that “demand from China increased

substantially in recent years and contributed to increased prices

both globally and in the U.S. market” based on arguments raised in

Nucor’s Posthearing Brief. Views at 63. The Commission then noted

that “in 2005, the percentage of total shipments to China by

subject producers were low or non-existent.” Views at 74, n. 414.

As noted by Defendant-Intervenors COSIPA and USIMINAS, most

subject countries exported commercially insignificant quantities of

CTL plate to China between 2004 and 2006, constituting less than 1

percent of the roughly 7 million ton market for CTL plate in the

U.S. See COSIPA & USIMINAS Resp. Br. at 13. In the aggregate,

subject countries constituted only 15.8 percent of total CTL plate

exports to China in the first half of 2006. See id. Indeed,

COSIPA notes that even the Plaintiff recognized that Europe and

Latin America rather than China constitute the primary export

markets for the vast majority of subject producers. See COSIPA &

USIMINAS Resp. Br. at 13; Pl.’s Br. at 34. Thus, the Court finds

that the record is replete with evidence supporting the

Commission’s finding that the subject countries do not rely on the

Chinese market. 

Nucor’s second argument that the Commission ignored record
Court No. 07-00070 Page 33

evidence in finding no evidence that China has displaced subject

producers in their home or regional markets is also simply

incorrect. Again, the Commission specifically discussed this issue

and found that “subject producers have recently shipped larger

volumes to their home and regional markets.” Views at 74. Indeed,

the record reflects that Belgian, Finnish, German, Polish, and U.K.

subject producers had higher home market shipments in interim 2006

than in interim 2005, and that Brazilian, Polish, Taiwan, and U.K.

subject producers had higher regional shipments in interim 2006

than in interim 2005. See Staff Report, Tables CTL-IV-9, -14, -19,

-25, -37, -49, -51, -53, and -58. 

Although Nucor contends that the EU’s quantitative

restrictions only proves the importance of plate duties in the

United States, the Commission reasonably observed that those

restrictions would prevent any surge in imports from those

countries into the European Union. See Views at 74, n. 415.

Nucor’s argument that the Commission failed to consider its

finding relating to China’s overcapacity made in the 2005 sunset

review similarly lacks merit. The Commission sufficiently

addressed and explained that “[i]n contrast to the producers in the

cumulated countries involved in the 2005 CTL plate reviews, which

the Commission found relied on the Chinese market (except for

Italy), producers in these subject countries do not rely on the

Chinese market.” Views at 74. The Commission also noted that
Court No. 07-00070 Page 34

“[i]mports from the subject countries in the 2005 reviews (except

for France) surged in volume in the period leading up to the

orders; subject producers continued to ship into the U.S. market;

subject producers increased production capacity over the period of

review; and subject producers were subject to antidumping duties in

third-country markets.” Views at 74, n. 412. The Court is thus

satisfied with the Commission’s explanation and finds it

reasonable.

The Court is also unconvinced by Nucor’s third argument that

the record evidence contradicts the Commission’s finding that

“future increases in Chinese production and Chinese net CTL plate

exports are forecast to be more moderate.” Indeed, the record

reflects that the Commission relied on the same data that Nucor

claims the Commission ignored. See Views at 63 n. 337 (stating

that Chinese production increased [a certain number of] percent

between 2000 and 2006 but was projected to increase only [a smaller

number of] percent between 2006 and 2008). Moreover, the Court

finds that the Commission did in fact analyze China’s production

and consumption to determine the extent of its oversupply. See

Views at 63, n. 334 (stating that China’s production was projected

to exceed its consumption by [a certain number of] metric tons in

2006, compared to an excess ranging from [a certain number] to [a

certain number of] metric tons annually between 2007 and 2010);

Nucor’s Posthearing Brief, Confidential Administrative R. Doc. No.
Court No. 07-00070 Page 35

636 (“Nucor’s Posthearing Brief”), Ex. 2. 

In short, the Court finds no merit to all three arguments

posed by Nucor with respect to the Commission’s findings relating

to the “China effect” and finds that the Commission’s findings are

supported by substantial evidence on the record and in accordance

with law. 

(b) The Commission’s findings regarding subject countries’

capacity trends are supported by substantial evidence and

in accordance with law

With respect to production capacity in subject countries, the

Commission found that “[t]here have been significant declines in

production capacity in many of the subject countries since the

original investigations, including for each of the countries with

relatively larger capacities at the time of the original

investigations” and that the record did not reflect any likely

significant increases in production capacity in the subject

countries in the reasonably foreseeable future. Views at 67. The

Commission also found that excess capacity of subject producers in

2005was “considerably smaller than the 1.1 million short tons of

excess capacity that existed among the eleven subject countries in

the first reviews.” Id. at 68-69. 

Nucor complains that the Commission erred (1) in finding that

production capacity declined in many of the subject countries, see

Pl.’s Br. at 30-33, (2) in finding that there would be no

significant increases in production capacity in the reasonably
Court No. 07-00070 Page 36

11 With respect to the Commission’s finding on excess

capacity of subject countries, Nucor argues that “the Commission

erred by excluding Romanian imports from consideration” because

it “impermissibly failed to cumulate subject imports from Romania

with other subject imports.” Pl.’s Br. at 36. 

12 Nucor contends that the Commission’s “reliance on the

capacity data provided by respondents alone constitutes

reversible error.” Pl.’s Br. at 31.

foreseeable future, see id. at 31-32, and (3) by grossly

underestimating excess capacity of subject producers, see id. at

34-36. 

The Commission erred, according to Nucor, by “ignor[ing] the

wealth of record evidence documenting the substantial existing

capacity . . . in both subject and non-subject countries.” Id. at

30. Nucor contends that “in seven out of 10 subject countries,

production capacity actually increased from the original

investigation to 2005” and that “[i]n the eleventh subject country

. . . production capacity increased from 1999 to 2005.” Id.

Nucor next contends that the Commission erred by relying

solely on questionnaire data with respect to its findings on

production capacity and excess capacity of subject producers.11 See

id. at 35-36. According to Nucor, respondent data were incomplete

and inadequate because fewer than half of the subject producers

responded to the questionnaire.12 See id. at 31, 35-36. Instead,

Nucor argues that the Commission should have relied upon a certain

capacity data on the record which is more comprehensive. Had the

Commission relied upon that data, Nucor contends that it would have
Court No. 07-00070 Page 37

13 Nucor’s argument based on Romania and Mexico, the two

countries that the Commission determined to decumulate, do not

merit a detailed discussion since capacity data from noncumulated countries are irrelevant in analyzing production

capacities of cumulated subject countries. See 19 U.S.C. §

1675a(a)(2)(A) (requiring the Commission to consider likely

increases in production capacity in the subject exporting

country).

14 With respect to Brazil’s production capacity, Nucor

supports its argument by pointing to confidential capacity data

which it claims to be more comprehensive. See Pl.’s Br. at 32. 

Nucor complains that the Commission failed to address this data. 

However, the Court finds that the Commission properly relied on

questionnaire data as discussed infra. 

found that (1) production capacity increased in the subject

countries, see id. at 31, and (2) subject countries had a

significant excess capacity, see id. at 36. 

Nucor also complains that the “evidence . . . refutes the

Commission’s assertion that there would be no significant increases

in production capacity in the foreseeable future.” Id. at 31. In

support of its argument, Nucor cites to record evidence relating to

Romania, Mexico13 and Brazil.14 See id. at 31-32. 

In addition, Nucor contends that the Commission failed to

consider or address other projected production increases in certain

subject countries, which according to Nucor, provide a more

accurate indication of likely levels of exports to the U.S. market

than capacity. See id. at 32. In short, Nucor contends that

“capacity and or production increases were expected in nine of the

11 subject countries in the reasonably foreseeable future.” Id.

Lastly, Nucor argues that the Commission failed to “consider
Court No. 07-00070 Page 38

15 The Commission states that foreign producer

questionnaires covered 100 percent of subject production for four

of the nine countries cumulated by the Commission. For three of

the remaining five countries, the Commission’s questionnaires

covered the large majority of production in those countries. For

the remaining two countries, the Commission did not have

questionnaire responses but relied on the data provided by Nucor

as the best indication of those countries’ capacity levels. See

ITC Mem. at 25-26.

the substantial record evidence documenting the massive new plate

capacity expansions expected around the globe in the reasonably

foreseeable future.” Id. 

The Commission responds that it correctly found that the

“combined production capacity of the nine subject countries has

declined substantially since the original investigations.” Views

at 67. 

According to the Commission, to the extent available, it

reasonably relied on capacity data that was directly submitted by

the subject producers that conformed to the scope of the reviews

and that accounted for the vast majority of production in the

subject countries. See ITC Mem. at 25-26. Indeed, the Commission

notes that most of the companies that did not respond to the

questionnaire were not producers of subject merchandise.15 See id.

at 26. The Commission further explained that the data which Nucor

contends the Commission should have relied upon were understated in

some respects and overstated in other respects. See id. at 27

(quoting Views at 56-57). 

The Court agrees and is satisfied with the Commission’s
Court No. 07-00070 Page 39

explanation for using questionnaire responses and finds the

explanation reasonable because those responses correspond directly

to the scope of the reviews. The use of data which Nucor contends

the Commission should have relied upon, which do not directly

correspond to the scope of the reviews, was also appropriate in

instances where the subject countries’ questionnaire responses were

insufficient or absent. See 19 U.S.C. § 1677e(a).

The Court also finds that the Commission’s findings with

respect to production capacity and capacity increases are supported

by substantial evidence. The Commission reasonably relied upon

respondent questionnaire data and correctly found significant

declines in production capacity in many of the subject countries

since the original investigations. See ITC Mem. at 27; Staff

Report, Tables CTL-IV-8, -13, -18, -24, -25, -30, -36, -42, -48,

-50, -52, -57; Views at 67 n. 363. Nucor’s argument that producers

in some countries experienced increases in capacity does not

invalidate the Commission’s finding.

With respect to Nucor’s argument that the Commission should

have analyzed production increases which provide a more accurate

indication of likely levels of exports to the U.S. market than

capacity, the Court agrees with the Commission’s response that the

statute directs it to consider production capacity rather than

production increases. See ITC Mem. at 29; 19 U.S.C. §

1675a(a)(2)(A). In any event, even if Nucor’s argument that
Court No. 07-00070 Page 40

16 The Commission states that “because the questionnaires

asked foreign producers to report ‘any changes in the character

of [their] operations relating to the production of [CTL plate] .

. . any production increases due to improved efficiency should

have been captured in the responses along with new capacity

additions.” ITC Mem. at 29.

production increases provide a more accurate indication of likely

levels of exports to the U.S. market than capacity increases is

correct, the Court is satisfied with the Commission’s finding,

which included an analysis of production increases.16

Moreover, the Commission specifically recognized that the

available excess capacity is not insubstantial in relation to the

U.S. market, but found it unlikely “that such volumes would be

shipped to the United States if the finding and orders were

revoked.” Views at 68. In doing so, the Commission provided a

detailed explanation of subject producers’ high capacity

utilization, strong demand and focus on their home and regional

markets. The Court finds the Commission’s explanation reasonable

and supported by substantial evidence on the record.

(c) The Commission’s findings regarding demand conditions in

the U.S. and global markets are supported by substantial

evidence and in accordance with law

In its volume analysis, the Commission considered demand

conditions in the U.S. and global markets for the reasonably

foreseeable future. See Views at 71-72. The Commission found that

projections for “plate consumption outside of the North American

market . . . show continuing increases through 2010” and that
Court No. 07-00070 Page 41

17 German-UK Respondents are Corus Group, PLC, AG der

Dillinger Hüttenwerke, Salzgitter AG Stahl und Technologie and

ThyssenKrupp Steel AG.

“demand is also expected to continue to be strong in the regional

markets that subject producers currently serve” including Europe

and Latin America. Views at 72-73.

Nucor argues that the certain data contained in the

Commission’s Staff Report does not support the Commission’s finding

that demand for plate in Europe and other global markets was

projected to increase in the reasonably foreseeable future. See

Pl.’s Br. at 33-34. In support of its argument, Nucor relies on a

certain independent data contained in its Prehearing Brief. See

Nucor’s Prehearing Br., Confidential Administrative R. Doc. No. 561

(“Nucor’s Prehearing Br.”), Ex. 4, Table S.1; Ex. 7. 

The Commission responds that its finding is supported by

substantial evidence and points out that instead of the

Commission’s data in its Staff Report, Nucor cites to data that

includes broader “steel plate” industry data. According to the

Commission, it correctly relied upon more narrowly tailored data

which shows an overall upward trend in demand. ITC Mem. at 33.

The Court agrees with the Commission and finds reasonable that it

relied upon more narrowly tailored data. Furthermore, the

Commission’s conclusion is supported by substantial record

evidence. As noted by the German-UK Respondents,17 even the data

cited in Plaintiff’s brief support the Commission’s finding. See
Court No. 07-00070 Page 42

German-UK Resp. Br. at 18-28. 

In sum, record evidence, particularly the data that Plaintiff

itself cites, refutes Plaintiff’s arguments, and supports the

Commission’s findings.

(d) The Commission’s findings regarding regional exports as

evidence of subject producers’ export orientation are

supported by substantial evidence and in accordance with

law

The Commission examined the level and composition of exports

from the nine cumulated subject countries to markets other than the

United States and found that for seven subject countries for which

there was information on total shipments, “their exports . . .

represented [a small] percent of total shipments because an

important share of their shipments were consumed internally and/or

sold in their home market.” Views at 70. The Commission went on

to state that “a substantial majority of these export shipments

were to markets in the subject producers’ own geographic regions.”

Id. Thus, the Commission concluded that “we do not consider

subject producers’ within-region exports to indicate that increased

exports to the United States are likely if the finding and orders

under review are revoked.” Id. at 71. 

Nucor argues that “the Commission erred by considering these

‘within-region’ exports to be equivalent of home market exports”

because “[t]he statute does not permit such an analysis.” Pl.’s

Br. at 37. Citing to 19 U.S.C. § 1677(3), Nucor submits that the
Court No. 07-00070 Page 43

18 In its determination, the Commission referred to

within-region exports as “export shipments,” as distinguished

from “shipments . . . consumed internally and/or sold in their

home market.” Views at 70. 

Commission is not permitted to consider a customs union, such as

the European Union, as a country for the purpose of antidumping

proceedings. See id. at 37. Moreover, Nucor contends that

“barriers to trade and customs formalities within the EU still

exist,” and therefore, “the premise that producers are free from

internal barriers to trade with the EU is simply not correct.” Id.

at 37. Nucor goes on to conclude that “shipments outside a subject

producer’s home country, even if within the EU or Mercosur, must be

considered evidence of the export-orientation of that producer.”

Id. In support of its position, Nucor points to record evidence

relating to the subject countries’ export data. See id. at 38. In

addition, Nucor states that the Commission failed to consider data

indicating that subject countries exported a substantial volume of

subject merchandise outside their region. See id.

The Court finds no merit to Nucor’s arguments. First, the

Commission did not consider regional exports to be home market

sales as Nucor claims. They were explicitly considered exports.18

Second, although Nucor points out that barriers to trade and

customs formalities within the EU still exist, that fact alone does

not invalidate the Commission’s finding that “subject producers

have a significant incentive to continue to ship to markets that

are in relatively close proximity to them, and in the case of the
Court No. 07-00070 Page 44

19 The Court is similarly unconvinced by Nucor’s argument

that the Commission failed to consider data indicating that

subject countries exported a substantial volume of subject

merchandise outside their region. The Court finds that the

record evidence amply supports the Commission’s finding that for

seven subject countries for which there was information on total

shipments, “their exports . . . represented [a small] percent of

(continued...)

European Union and Mercosur, that provide some logistical and

tariff advantages.” Views at 71. The Commission throughly

explained its reasoning as follows:

Given the geographic proximity of subject producers and

purchasers in regional markets, transportation costs are

generally lower than they would be in the case of

shipments from those producers to the United States. For

these reasons and others, foreign producers, including

Mittal, produce according to a model in which production

facilities largely serve the regional markets in which

they are located. Moreover, having invested efforts in

cultivating customers within regional markets (customers

with whom foreign producers may expect to enjoy certain

natural advantages (such as those mentioned above)),

foreign producers are not likely to abandon those

existing regional customers in favor of more speculative

and short-lived prospects with customers in the United

States. Id.

Although Nucor relies on export data for subject countries to

support its argument, the Commission reasonably found based on

record evidence that only a small portion of the subject countries’

total shipments were exported to markets outside their local

regions. Thus, the Commission’s conclusion, that subject

producers’ within-region exports did not indicate that increased

exports to the U.S. were likely upon revocation, is reasonable and

is supported by substantial evidence on the record. See Views at

71, 73, nn. 387-89.19
Court No. 07-00070 Page 45

(...continued)

total shipments” and that “a substantial majority of these export

shipments were to markets in the subject producers’ own

geographic regions.” Views at 70.

20 The statute provides that:

In evaluating the likely price effects of imports of

the subject merchandise if the order is revoked or the

suspended investigation is terminated, the Commission

shall consider whether - 

(A) there is likely to be significant price

underselling by imports of the subject merchandise as

compared to domestic like products, and

(B) imports of the subject merchandise are likely to

enter the United States at prices that otherwise would

have a significant depressing or suppressing effect on

the price of domestic like products. 19 U.S.C. §

1675a(a)(3).

B. The Commission’s Finding That Cumulated Subject Imports Would

Not Likely Have Significant Price Effects Is Supported By

Substantial Evidence And In Accordance With Law

With respect to the Commission’s finding that cumulated

subject imports would not likely have significant price effects,20

Nucor puts forth the following arguments. First, Nucor argues that

the Commission’s determination that revocation of the order would

not result in any significant adverse price effects is not

supported by substantial evidence and is contrary to law. See

Pl.’s Br. at 38. According to Nucor, the Commission relied upon

its erroneous findings regarding the likely volume of subject

imports, which was unsupported by the evidence. See id.

Second, Nucor complains that, in assessing price effects of

subject imports from Romania, the Commission noted that the
Court No. 07-00070 Page 46

percentage of underselling increased from the original

investigation to the current review, and that the margins of

underselling also remained significant during the period of review.

See id. at 38-39. Notwithstanding this underselling, the

Commission found that prices for all five pricing products have

more than doubled since 2000. See Views at 77-78. Thus, the

Commission found it unlikely that the additional volumes of subject

imports from Romania will lead to significant price declines. See

id. at 80. 

Nucor objects to the Commission’s analysis on the ground that

the level of pricing is irrelevant to an underselling analysis to

the extent that a certain price level has no bearing on whether

imports will undersell the domestic product. See Pl.’s Br. at 39.

Indeed, Nucor claims that higher pricing means that underselling

will result in proportionally greater price declines. See id.

Nucor thus argues that the Commission’s determination with respect

to the price effects of subject imports from Romania is not

supported by substantial evidence and otherwise contrary to law.

With respect to Nucor’s first argument, the Court finds that

the Commission reasonably and correctly relied on its volume

findings, which were based on substantial record evidence and

otherwise consistent with law. The Commission reasonably found

that the cumulated imports would not be likely to significantly

undersell the domestic like product or significantly depress or
Court No. 07-00070 Page 47

suppress domestic prices upon revocation. See Views at 76-80. As

noted by the Commission, the record evidence reflects that “growing

demand in U.S. and global markets enabled domestic producers to

double or nearly double prices to historic highs during the [period

of review], with the largest price increases occurring during 2004,

even though there was a contemporaneous increase in the volume of

total imports.” ITC Mem. at 77-79. Moreover, “[t]he spread

between costs and net unit sales prices grew as domestic producers

issued successive price increases that more than offset their

growing costs, and demand projections were rosy.” See id.

Second, the Court finds no merit to Nucor’s argument with

respect to subject products from Romania that higher pricing means

that underselling will result in proportionally greater price

declines. The statute requires that the Commission evaluate the

likely price effects of imports and whether there is likely to be

significant price underselling. See 19 U.S.C. § 1675a(a)(3). The

Commission found underselling, but also found that prices continued

to increase and that domestic producers have passed on surcharges

and increased base prices even in the face of increasing imports in

2004 and 2005. See Views at 92. Thus, the Commission’s conclusion

that revocation of the order would not lead to adverse price

effects despite finding underselling is not illogical as Nucor

suggests. Rather, the Commission properly analyzed whether there

would be significant price effects pursuant to the statutory
Court No. 07-00070 Page 48

requirements.

C. The Commission’s Finding That Cumulated Subject Imports Would

Not Likely Have A Significant Impact On The Domestic Industry

Is Supported By Substantial Evidence And In Accordance With

Law

Lastly, Nucor disagrees with the Commission’s determination

that revocation was not likely to have a significant impact on the

domestic industry. See Pl.’s Br. at 40. Nucor contends that the

determination is not supported by substantial evidence and is

contrary to law because the Commission’s analysis was based on its

erroneous findings regarding likely volume and price effects as

discussed above. See id.

As the Court already found supra, the Commission’s findings

regarding volume and price effects are supported by substantial

evidence on the record. Moreover, the Commission provided a

thorough and detailed explanation to support its conclusion. The

Commission stated with respect to the first sunset review that it

“found the domestic industry to be in a weakened state, due at

least in part to the effects of the dumped and subsidized imports

from non-subject countries that were put under order during the

period of review.” Views at 81. In the current proceedings, the

Commission stated that “[w]e find that the domestic industry is not

currently vulnerable. Since the beginning of the period of review,

the domestic industry, through closures, bankruptcies,
Court No. 07-00070 Page 49

consolidation, and expansion, has been significantly restructured

and has emerged from this period stronger and fundamentally

changed.” Id. It went on to state that “[m]ost industry

performance indicators improved dramatically during the current

period of review,” id. at 81, and that “[t]he conditions that have

enabled the industry to become profitable since 2004 are not likely

to change in the reasonably foreseeable future,” id. at 84. The

Commission thus concluded that because the domestic industry is in

a healthy rather than vulnerable condition, revocation of the

orders on subject imports would not likely have a significant

adverse impact on the domestic industry within the reasonably

foreseeable future. See id. at 85. Thus, the Court finds that the

Commission’s conclusion is supported by substantial evidence on the

record and in accordance with law.

CONCLUSION

In accordance with the foregoing, the Court affirms the ITC’s

final determination. Plaintiff’s motion for judgment upon the

agency record is denied. 

 /s/ Nicholas Tsoucalas 

 NICHOLAS TSOUCALAS

 SENIOR JUDGE

Dated: July 9, 2008

New York, New York