Slip Op. 08 - 3 

 UNITED STATES COURT OF INTERNATIONAL TRADE 

- - - - - - - - - - - - - - - - - - - -x 

MITTAL STEEL ROMAN and SC SILCOTUB : 

S.A., 

 : 

 Plaintiffs, 

 : 

 v. 

 : 

THE UNITED STATES OF AMERICA, 

 : Consolidated 

 Defendant, Court No. 06-00173 

 : 

 -and- 

 : 

UNITED STATES STEEL CORPORATION, 

 : 

 Intervenor-Defendant. 

 : 

- - - - - - - - - - - - - - - - - - - -x 

Memorandum & Order

[Final sunset-review determination of U.S. Interna- 

 tional Trade Commission affirmed; action dismissed.] 

 Decided: January 11, 2008 

 Arent Fox LLP (John M. Gurley, Nancy A. Noonan and Diana 

Dimitriuk-Quaia) for the plaintiffs. 

 

 James M. Lyons, General Counsel, Andrea C. Casson, 

Assistant General Counsel for Litigation, and Rhonda M. Hughes, 

U.S. International Trade Commission, for the defendant. 

 Skadden, Arps, Slate, Meagher & Flom LLP (Robert E. 

Lighthizer, John J. Mangan, James C. Hecht and Stephen P. 

Vaughn) for the intervenor-defendant. 

 AQUILINO, Senior Judge: This action consolidates complaints filed on behalf of the above-encaptioned plaintiff 
Consolidated 

Court No. 06-00173 Page 2 

Romanian enterprises. Each contests the final determination of 

a five-year review conducted by the U.S. International Trade 

Commission (“ITC”) pursuant to 19 U.S.C. §1675(c) that 

revocation of the antidumping-duty order on small diameter 

carbon and alloy seamless standard, line, and pressure pipe 

(“CASSLP”) from their country of origin would be likely to lead 

to continuation or recurrence of material injury to an industry 

in the United States within a reasonably foreseeable time. See

USITC Pub. 3850, p. 1 (April 2006)1. 

I 

 This determination was by operation of the law when 

three commissioners were counted in its favor and an equal 

number in the negative. See 19 U.S.C. §1677(11). Of the six 

commissioners, four exercised their discretion not to cumulate 

imports from Romania with imports from the Czech Republic, 

Japan, and South Africa, the other countries under review. Of 

those four, only one made an affirmative determination as to 

Romania. The other two in favor were by commissioners who 

 1

 Referred to hereinafter as ITC record document (“R.Doc”) 

231. 
Consolidated 

Court No. 06-00173 Page 3 

cumulated imports from Romania with all of the other countries 

subject to the review, including the Czech Republic and South 

Africa. 

 The plaintiffs contend that those two commissioners 

erred as a matter of law when they based their 

decision to maintain the order on Romania (and all of 

the subject countries) using cumulated data . . .. 

The Commission determined not to cumulate imports from 

Romania with any other subject country, as reflected 

by the decision of four of the Commissioners. 

Accordingly, [those two commissioners] should have 

made their injury determination on the same, uncumulated basis. 

Plaintiffs’ Memorandum, p. 5. Additionally, they claim that 

Commissioner Aranoff’s determination that revocation of the 

antidumping-duty order on CASSLP from Romania would be likely to 

lead to continuation or recurrence of material injury to the 

domestic industry is not supported by substantial evidence on 

the record. See id. at 6. This contention relies upon the 

three commissioners counted in the negative, as well as upon 

perceived internal inconsistencies in the Aranoff determination 

itself.2

 2

 Given the quality of plaintiffs’ written submissions, as 

well as those in opposition, plaintiffs’ motion for oral 

argument can be, and it hereby is, denied. 
Consolidated 

Court No. 06-00173 Page 4 

A 

 The ITC is required to make a final determination of 

whether a domestic industry is materially injured, or is 

threatened with material injury, by reason of imports, or sales 

(or likelihood of sales) for importation. 19 U.S.C. 

§1673d(b)(1). Generally, five years after the date of 

publication of an affirmative determination and subsequent 

imposition of an antidumping-duty order, the Commission conducts 

a review to determine whether revocation of such order would be 

likely to lead to continuation or recurrence of dumping and 

material injury. See 19 U.S.C. §1675(c)(1). In conducting such 

a review, the ITC is required to take into account: 

(A) its prior injury determinations, including 

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

subject merchandise on the industry before the order 

was issued . . ., 

(B) whether any improvement in the state of the 

industry is related to the order . . ., 

(C) whether the industry is vulnerable to 

material injury if the order is revoked . . ., and 

(D) in an antidumping proceeding under section 

1675(c) . . ., the findings of the administering 

authority regarding duty absorption under section 

1675(a)(4) . . .. 

19 U.S.C. §1675a(a)(1). Additionally, 
Consolidated 

Court No. 06-00173 Page 5 

the Commission may cumulatively assess the volume and 

effect of imports of the subject merchandise from all 

countries with respect to which . . . [5-year reviews] 

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. 

19 U.S.C. §1675a(a)(7). 

 This court has exclusive jurisdiction over an action 

commenced to contest a resulting “sunset review” determination. 

28 U.S.C. §1581(c). And it shall hold unlawful any 

determination, finding, or conclusion 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 “such 

relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Nippon Steel Corp. v. United States, 

337 F.3d 1373, 1379 (Fed.Cir. 2003), quoting Consol. Edison Co. 

v. NLRB, 305 U.S. 197, 229 (1938). In addition, the underlying 

determination must show that the agency has “examine[d] the 

relevant data and articulate[d] a satisfactory explanation for 

its action including a rational connection between the facts 

found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(internal 

quotation marks deleted). 
Consolidated 

Court No. 06-00173 Page 6 

 Even if the court could draw “two inconsistent 

conclusions from the evidence does not prevent an administrative 

agency’s finding from being supported by substantial evidence.” 

Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). That is, 

determinations can be affirmed so long as they are reasonable 

and supported by the record as a whole, even if there is some 

evidence that detracts from the agency’s conclusions. E.g., 

Olympia Indus., Inc. v. United States, 22 CIT 387, 389, 7 

F.Supp.2d 997, 1000 (1998), citing Atlantic Sugar, Ltd. v. 

United States, 744 F.2d 1556, 1563 (Fed.Cir. 1984). 

B 

 The plaintiffs contend that “the Commission’s 

affirmative decision as to Romania was an error as a matter of 

law because it did not reflect the actual decision of the 

Commission”, and, additionally, it is “unsupported by 

substantial evidence on the record because it was based in part 

on cumulated data, which included data from countries for which 

the Commission made negative determinations.” Plaintiffs’ 

Memorandum, pp. 10-11. This position derives from plaintiffs’ 

reading of 19 U.S.C. §1675a(a)(7), supra, that the “decision on 

cumulation is the decision of the ‘Commission’”. Id. at 12. 
Consolidated 

Court No. 06-00173 Page 7 

They argue that, because a majority of the commissioners, and 

thus the ITC as a whole, made a negative determination as to the 

Czech Republic and South Africa, and the determination of 

Commissioners Koplan and Lane with regard to Romania included 

cumulated data from those other two countries, 

the Commission failed to act in accordance with law 

when it robotically tallied the votes and made an 

affirmative determination as to Romania without 

reviewing the contradictions between the individual 

Commissioner’s decisions. 

Id. at 16. 

C 

 In accordance with 19 U.S.C. §1675a(a)(7), supra, the 

record reflects findings that all reviews were initiated on May 

2, 20053 and 

that the subject imports of small diameter CASSLP . . . 

from the Czech Republic, Japan, Romania, and South 

Africa are fungible with each other and with the 

domestic like product, that there will likely be a 

reasonable overlap of geographic markets and channels 

of distribution if the orders are revoked, and that 

the subject imports would be simultaneously present. 

R.Doc 231 at 14. Also, considering each group of subject 

imports, there was no finding that those imports from the Czech 

 3

 See R.Doc 231 at 9. 
Consolidated 

Court No. 06-00173 Page 8 

Republic, Japan, Romania, and South Africa would likely have no 

discernible adverse impact on the domestic industry if the 

antidumping-duty order were revoked. See id. at 10-13. Hence, 

there was discretion to exercise the authority to cumulate the 

subject imports during the instant review.4

 Ugine-Savoie Imphy v. United States, 26 CIT 851, 248 

F.Supp.2d 1208 (2002), dealt with facts similar to those 

presented here. In that matter, five commissioners found that 

they had discretion to cumulate. However, as in the action at 

bar, a majority declined to cumulate imports from France, the 

imports at issue in that action, with imports from Brazil and 

India. Commissioner Bragg, on the other hand, did cumulate 

Brazilian, French, and Indian imports for purposes of the review 

and became one of the three tie votes not to revoke the 

antidumping-duty order. The plaintiffs in Ugine argued that the 

commissioner abused her discretion because, by cumulating, 

France was unfairly penalized for the failure of Brazil and 

India to participate in the sunset review. 

 4

 See R.Doc 231 at pages 15 through 18 for discussion of 

other considerations that led four of the commissioners to 

decline to exercise their discretion to cumulate subject imports 

from Romania with the Czech Republic, Japan, and South Africa. 
Consolidated 

Court No. 06-00173 Page 9 

 The plaintiffs at bar attempt to distinguish Ugine, 

contending that in that action, 

since the determination by Commissioners Miller and 

Hillman[] was that revocation of the orders from 

France, individually, and India/Brazil, cumulated, 

would cause a continuation or recurrence of material 

injury to the domestic industry, Commissioner Bragg’s 

decision that those countries’ imports would, 

cumulatively, also cause a continuation or recurrence 

of material injury to the domestic industry, was 

consistent. 

Plaintiffs’ Memorandum, p. 14. While this point is well-taken, 

the court’s opinion in Ugine is clear and not so limiting as to 

be inapplicable in the facts presented herein, to wit: 

. . . Commissioner Bragg did not abuse her discretion 

by cumulating imports . . . because the requirements 

of § 1675a(a)(7) were met. There is no exception for 

cumulation in the statute based on non-participation 

in the sunset reviews. There is an express exception 

to cumulation under the adverse impact provision, and 

the Court declines to create an implied exception for 

non-participation when Congress clearly delineated the 

exceptions it intended under the Statute. 

26 CIT at 866-67, 248 F.Supp.2d at 1223. 

 

 The Court of Appeals for the Federal Circuit (“CAFC”) 

addressed similar circumstances in Corus Group PLC v. Int’l 

Trade Comm’n, 352 F.3d 1351 (2003). In that case, the domestic 

industries in the underlying agency determination were defined 
Consolidated 

Court No. 06-00173 Page 10 

by four of the six commissioners as tin-mill products and, 

separately, certain carbon flat-rolled steel. Three of them 

made a negative injury determination with regard to the tinmill-product imports, while the fourth reached the opposite 

result. The remaining two commissioners defined the domestic 

industry as one industry, encompassing both tin-mill products 

and flat-rolled steel, and both made affirmative injury 

determinations. Thus, the “Commission reported that it was 

evenly divided as to whether increased importation of tin mill 

products caused serious injury.” 352 F.3d at 1355. The 

appellants contended before the CAFC that the votes of those 

commissioners who did not analyze tin-mill products as a 

separate category could not be counted in the affirmative and 

that the Commission’s vote should properly have been reported as 

a 3-1 determination of no serious injury. See id. at 1360. 

 The CAFC found “no merit to this argument.” Id. It 

noted that those two commissioners “specifically voted 

affirmatively with regard to tin mill products[, and that] . . . 

neither commissioner objected when the Commission tallied their 

votes as affirmative”. Id. at 1360-61. Additionally, the CAFC 

went on to state that, having 
Consolidated 

Court No. 06-00173 Page 11 

reached this conclusion, we are not “compelled . . . 

to probe the mental processes” of the commissioners 

any further to determine whether their votes were 

properly counted as affirmative despite those 

commissioners’ different underlying reasoning. Voss

[Int’l Corp. v. United States, 67 CCPA 96, 102], 628 

F.2d [1328,] 1332 [(1980)] (holding that the 

Commission properly recorded a non-voting 

commissioner’s vote as an abstention rather than as a 

dissent); cf. Pub. Serv. Comm’n v. Fed. Power Comm’n, 

543 F.2d 757, 777 (D.C.Cir.1974)(holding that “in each 

instance, what counted in the definition of agency 

action was the vote rather than the individual view” 

of each member of the Federal Power Commission). 

Accordingly, the Commission did not err in counting 

the votes as to tin mill products as a 3-3 tie. 

Id. at 1361. Again, although the specific facts differ herein, 

Corus Group cannot be discounted. 

 In U.S. Steel Group v. United States, 96 F.3d 1352, 

1359-62 (Fed.Cir. 1996), domestic steel producers challenged the 

ITC’s negative injury determinations. In that case, two 

commissioners engaged in one-step analysis, others took a twostep approach, and one commissioner did not specify his type of 

analysis. The domestic producers contended that “there should 

be a single methodology, applicable to each of the 

commissioners, for determining whether a domestic industry is 

injured”. 96 F.3d at 1361. The CAFC opined, however, that the 

“statute on its face compels no such uniform methodology” and
Consolidated 

Court No. 06-00173 Page 12 

 went on to make clear that the 

invitation to employ such diversity in methodologies 

is inherent in the statutes themselves, given the 

variety of the considerations to be undertaken and the 

lack of any Congressionally mandated procedure or 

methodology for assessment of the statutory tests. 

 This court has no independent authority to tell 

the Commission how to do its job. We can only direct 

the Commission to follow the dictates of its statutory 

mandate. So long as the Commission’s analysis does 

not violate any statute and is not otherwise arbitrary 

and capricious, the Commission may perform its duties 

in the way it believes most suitable. 

Id. at 1362. In the light of this reasoning, this court cannot 

and therefore does not conclude that the exercise of discretion 

to cumulate per 19 U.S.C. §1675a(a)(7) by Commissioners Koplan 

and Lane was not in accordance with law, and therefore the 

findings based on the cumulated data are not unsupported by 

substantial evidence on the record. 

D 

 The plaintiffs contend that Commissioner Aranoff’s 

decision on the 

volume, price effects, and impact of imports from 

Romania on the domestic industry is not supported by 

substantial evidence on the record, particularly in 

view of the lack of vulnerability of the domestic 

industry. 
Consolidated 

Court No. 06-00173 Page 13 

Plaintiffs’ Memorandum, p. 2. They offer two arguments to 

support their position: first, the commissioner’s findings are 

contradicted by those of Commissioners Okun, Hillman and 

Pearson. Secondly, they contend that her findings contain 

internal inconsistencies that render her volume, price-effect, 

and likely-impact determinations unsupported by substantial 

evidence on the record.5

(1) 

 The plaintiffs state that Commissioner Aranoff 

found that the likely volume of imports of pipe from 

Romania would be significant if the order was revoked. 

. . . The dissenting views of Commissioners Okun, 

Hillman, and Pearson explicitly lay out the 

substantial evidence on the record that discredits 

[this] conclusion. 

Id. at 20 (citations omitted); that she 

found that “the subject imports from Romania . . . 

would be likely to have significant depressing or 

suppressing effects on the prices of the domestic like 

product in the reasonably foreseeable future if the 

 5

 See Plaintiffs’ Memorandum, pp. 20-28. Additionally, the 

plaintiffs request that, “[i]n the event of a remand . . . the 

Court should also instruct the Commission to reconsider this 

decision based on the entry of Romania into the European Union”. 

Id. at 18. But this request is not of consequence given the 

discussion hereinafter. 
Consolidated 

Court No. 06-00173 Page 14 

antidumping order were revoked.” . . . [Yet a]s 

explained by Commissioners Okun, Hillman, and Pearson, 

in these reviews, subject imports from Romania 

undersold domestic product in every available 

price comparison. Notwithstanding the consistent 

underselling by subject imports from Romania, 

U.S. prices have increased over the period of 

review. . . . Nor has the underselling by subject 

imports from Romania had any price suppressing 

effect. 

Id. at 24 (citation omitted); and that Commissioner Aranoff’s 

decision that revocation of the antidumping duty order 

on small diameter CASSLP . . . from Romania would 

negatively impact the domestic industry was 

unsupported by substantial evidence on the record, 

particularly in view of the lack of vulnerability of 

the domestic industry. . . . [Whereas] Commissioners 

Okun, Hillman, and Pearson [] explained: 

In line with our findings regarding the likely 

volume and price effects of subject imports from 

Romania, we find that subject imports would not 

be likely to have a significant adverse impact on 

the domestic industry’s output, sales, market 

share, profits, or return on investment, if the 

order were revoked. As demand is projected to 

remain strong, the small volume of subject 

imports that would be likely upon revocation 

would not be likely to have a significant adverse 

impact on the domestic industry. 

Id. at 26-27. 

 Even accepting these assertions does not necessarily 

govern consideration of whether another commissioner’s 

determination is unsupported by substantial evidence on the 
Consolidated 

Court No. 06-00173 Page 15 

record. In U.S. Steel Group v. United States, for example, the 

CAFC confirmed the 

indisputable proposition that each commissioner is 

free to attach different weight to factual information 

bearing on, and determinate of, the many statutory 

tests; and that commissioners may ultimately reach 

different factual conclusions on the same record. 

96 F.3d at 1362. And in Metallverken Nederland B.V. v. United 

States, 13 CIT 1013, 728 F.Supp. 730 (1989), where the court was 

urged to “negate a commissioner’s determination based upon the 

findings of the dissenting commissioners,” it responded that 

Congress’ expectation that commissioners would file 

concurring and dissenting opinions stating their 

findings of fact and conclusions of law “would be 

pointless if the existence of differing views 

precluded courts from sustaining Commission 

determinations.” 

13 CIT at 1017, 728 F.Supp. at 734, quoting Citrosuco Paulista, 

S.A. v. United States, 12 CIT 1196, 1210-11, 704 F.Supp. 1075, 

1089 (1988). See also Matsushita Elec. Indus. Co. v. United 

States, 750 F.2d 927, 936 (Fed.Cir. 1984)(evidence of record 

which detracts from evidence supporting ITC’s decision is 

neither surprising nor persuasive). 

 Given the agency record at bar, in the light of the 

foregoing caselaw, this court cannot set aside Commissioner 
Consolidated 

Court No. 06-00173 Page 16 

Aranoff’s determination merely because other commissioners 

developed different views thereof. 

(2) 

 In a five-year review, the ITC must determine whether 

revocation of an antidumping-duty 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). Under 

this standard, the agency 

must decide the likely impact in the reasonably 

foreseeable future of an important change in the 

status quo -- the revocation or termination of a 

proceeding and the elimination of its restraining 

effects on volumes and prices of imports. 

Uruguay Round Agreements Act Statement of Administrative Action, 

H.R. Rep. No. 103-316, vol. 1, p. 884. Commissioner Aranoff 

considered the likely volume, price effect, and impact of 

imports of the subject merchandise on the industry if the orders 

were revoked or the suspended investigation terminated and 

determined that, 

based on evidence on the record, [] producers in 

Romania will ship significant volumes of small 

diameter CASSLLP . . . into the U.S. market if the 

antidumping duty order is revoked. Accordingly, . . . 

the likely volume of imports of small diameter CASSLP 

. . . from Romania into the United States would be 
Consolidated 

Court No. 06-00173 Page 17 

significant in the reasonably foreseeable future if 

the antidumping duty order were revoked. 

R.Doc 231 at 66; and, with regard to price effect, that, as the 

likely volume will be significant in that reasonably foreseeable 

future, the 

subject imports from Romania would be likely to have 

significant depressing or suppressing effects on the 

prices of the domestic like product in the reasonably 

foreseeable future if the antidumping duty order were 

revoked. 

Id. at 68; and, with regard to the likely impact of those 

imports, that, 

although demand is projected to remain strong, the 

likely substantial volume and price effects of the 

subject imports from Romania would be sufficient to 

have a significant negative impact on the production, 

shipments, sales, market share, employment, and 

revenues of the domestic industry, despite its lack of 

vulnerability. This reduction in the industry’s 

production, shipments, sales, market share, and 

revenues would adversely affect the industry’s 

profitability and ability to raise capital and 

maintain necessary capital investments. 

Id. at 69. 

 The plaintiffs are of the view that “portions of the 

Commissioner’s determination are unsupported by substantial 

evidence on the record.” Plaintiffs’ Memorandum, p. 20. They 
Consolidated 

Court No. 06-00173 Page 18 

claim it contains “flaws” and accordingly pray that the court 

remand 

with instructions to provide specific cites to record 

evidence regarding Commissioner Aranoff’s findings on 

likely volume, price effect, and impact on the 

domestic industry in the event that the subject order 

is revoked, and if that is not possible, to enter a 

negative determination for Romania[.] 

Id. at 29. 

(a) 

 The plaintiffs posit “internal inconsistencies” that 

render the commissioner’s volume determination unsupported by 

substantial evidence on the record. Id. at 21. Specifically, 

they question her consideration of historical data and her 

finding with regard to the duration of higher prices in western 

Europe and Japan. They argue that the focus on such data 

ignores her prior acknowledgement that Silcotub was 

only purchased by the Tenaris Group in 2004, and the 

testimony of Silcotub’s representatives that 

Silcotub’s production is being refocused toward 

higher-value-added non-subject merchandise, as well as 

making significant marketing changes. 

Id. But 19 U.S.C. §1675a(a)(1)(A) calls for commissioners to 

take into account the “impact of imports of the subject 

merchandise on the industry before the order was issued”, and 
Consolidated 

Court No. 06-00173 Page 19 

the plaintiffs acknowledge that there are no historical data yet 

for that company’s purported new production and marketing 

strategy. 

 Ergo, Commissioner Aranoff’s consideration of such 

data, while acknowledging Silcotub’s announced strategic change, 

was part of her statutory mandate. 

 The plaintiffs take issue with the commissioner’s 

conclusion that higher prices for CASSLP in western Europe and 

Japan will not provide an incentive for Romanian producers to 

continue to serve those markets rather than the United States 

and also with her discussion of other evidence on the record. 

See id. at 22. But she concluded that there was “no evidence to 

suggest European or Asian prices are likely to stay above U.S. 

prices for the reasonably foreseeable future”, R.Doc 231 at 65, 

which appears to be reasonable, considering that prices for 

subject pipe had only “recently been higher in western Europe 

and parts of Asia,” and “the price differences between U.S. and 

western European markets narrowed . . . during 2005.” Id. Cf. 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 211 (1997) (if 

the determination is reasonable and supported by substantial 

evidence on the record, summary judgment is appropriate 
Consolidated 

Court No. 06-00173 Page 20 

regardless of whether the evidence is in conflict); Metallverken 

Nederland B.V. v. United States, 13 CIT at 1017, 728 F.Supp. at 

734 (1989). 

(b) 

 The plaintiffs contest Commissioner Aranoff’s view 

that 

the subject imports from Romania would be likely to 

have significant depressing or suppressing effects on 

the prices of the domestic like product in the 

reasonably foreseeable future if the antidumping duty 

order were revoked[,] 

R.Doc 231 at 68, claiming it is unsupported by substantial 

evidence on the record. Plaintiffs’ Memorandum, p. 24. They 

purport to view the evidence on the record as showing that U.S. 

prices increased during the period of review, even with the 

underselling of the Romanian imports at issue, and claim this 

circumstance should negate the commissioner’s finding. 

 Although finding that “Romanian imports, which have 

been underselling domestic merchandise during the period of 

review, are not currently having price depressing or suppressing 

effects”, the commissioner also noted that 

improvements in the condition of the U.S. industry are 

to be expected following the imposition of an 

antidumping order, . . . [which] can be evidence of 
Consolidated 

Court No. 06-00173 Page 21 

the effectiveness of the discipline imposed by an 

order. Notwithstanding the discipline imposed by the 

order . . ., those imports continued to undersell the 

U.S. product by significant margins.[] There is no 

evidence to suggest that such underselling would not 

continue in the event of revocation of the antidumping 

duty order. 

R.Doc 231 at 67 (footnote omitted). Hence, she concludes that 

the subject imports are likely to have such an effect if the 

antidumping-duty order were revoked, given “these likely volumes 

and likely levels of underselling”. Id. 

 On its face, this is clear reasoning by the 

commissioner, based upon substantial evidence, with regard to 

the price effects of subject Romanian imports if the 

antidumping-duty order were to be revoked. Cf. Acciai Speciali 

Terni, S.P.A. v. United States, 19 CIT 1051, 1061 

(1995)(“Pricing changes may be delayed or may occur in part due 

to other factors”). 

(c) 

 The plaintiffs assert that Commissioner Aranoff’s view 

that revocation of the antidumping-duty order on CASSLP from 

Romania would negatively impact the domestic industry is 

unsupported by substantial evidence on the record in light of 

her finding that “the domestic industry is not currently 
Consolidated 

Court No. 06-00173 Page 22 

vulnerable to injury by reason of increased subject imports.” 

This is based in particular upon consideration that 

the industry did not experience any financial losses 

during the period of review. Rather, the domestic 

industry was profitable in every year of the period of 

review and profits increased to very high levels. 

Plaintiffs’ Memorandum, p. 26, quoting R.Doc 231 at 26 and 

referring to the separate views of Commissioner Aranoff, id. at 

68 (“I join the Views of the Commission regarding the discussion 

of the domestic industry’s lack of vulnerability”). 

 But Commissioner Aranoff cites the following evidence 

on the record in support of her ultimate determination that the 

revocation of the antidumping-duty order would negatively impact 

the domestic industry, to wit: 

[D]omestic producers’ . . . capacity significantly 

increased over the period of review.[] Production followed the same trend.[] However, capacity utilization 

decreased over the period, albeit only slightly.[]

 U.S. shipments increased over the period of 

review[] and inventories declined.[] Net sales increased over the period.[] U.S. producers’ market 

share decreased from 2000 to 2004,[] as nonsubject 

imports gained market share.[] However, domestic producers’ market share increased during the interim 2005 

period, as compared with the interim 2004 period.[]

 

 The number of production and related workers fell 

over the period,[] as did their hours worked.[] 

However, wages paid increased,[] as did productivity.[] 
Consolidated 

Court No. 06-00173 Page 23 

Both capital expenditures[] and research and 

development expenses declined.[]

 

 I concluded above that revocation of the 

antidumping duty order with respect to Romania likely 

would lead to significant volumes of subject imports 

that would undersell the domestic like product and 

significantly depress or suppress U.S. prices. In 

addition, although demand is projected to remain 

strong, the likely substantial volume and price 

effects of the subject imports from Romania would be 

sufficient to have a significant negative impact on 

the production, shipments, sales, market share, 

employment, and revenues of the domestic industry, 

despite its lack of vulnerability. This reduction in 

the industry’s production, shipments, sales, market 

share, and revenues would adversely affect the 

industry’s profitability and ability to raise capital 

and maintain necessary capital investments.6

R.Doc 231 at 68-69 (footnotes to supporting evidence on the

record omitted). 

 

 6

 Plaintiffs’ memorandum, pages 27-28, criticizes the final 

two sentences of this quotation as “conclusory . . . statements 

[that] do not meet the Court’s substantial evidence standard 

because they do not constitute cites to substantial evidence on 

the record.” They refer to Nippon Steel Corp. v. United States, 

29 CIT ___, 391 F.Supp.2d 1258 (2005)(“Nippon V”), wherein the 

court reviewed a second remand determination in which, according 

to the plaintiffs, the ITC made “similar conclusory statements”. 

In Nippon V, the court found a lack of “substantial evidence to 

support [the Commission’s] conclusion” and remanded the matter 

yet again. However, Nippon Steel Corp. v. United States, 494 

F.3d 1371, 1381 (Fed.Cir. 2007), a reversal of that opinion, has 

since issued, holding that the CIT “erred in concluding that the 

Commission’s decision in the Second Remand Determination was not 

supported by substantial evidence”. 
Consolidated 

Court No. 06-00173 Page 24 

 Judicial review of a matter like this has led to 

recognition that there is 

no inconsistency between the requirement that the 

factors indicating present injury be considered when 

examining threat and Congress’ statement that the 

absence of any indicia of present injury should not be 

considered conclusive that threat of injury does not 

exist. 

E.g., Rhone Poulenc, S.A. v. United States, 8 CIT 47, 52, 592 

F.Supp. 1318, 1323-24 (1984). Therefore, the commissioner’s 

acceptance that the domestic U.S. industry is not currently 

vulnerable does not, in itself, mandate reconsideration. A 

reviewing court must still find that the administrative record 

possesses substantial evidence in support of a point of view 

arguably inconsistent with this factor. The court finds that to 

be this case specifically at bar. 

II 

 In view of the foregoing, plaintiffs’ motion for 

judgment on the agency record must be denied and this action 

dismissed. 

Decided: New York, New York 

 January 11, 2008 

 

 /s/ Thomas J. Aquilino, Jr. 

 Senior Judge