Opinion
In this consolidated action, Plaintiffs have filed two Rule 56.2 Motions for Judgment on the Agency Record: the first filed by Nucor Corporation (“Nucor”); the second filed jointly by Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation (collectively “Domestic Integrated Producers”). Plaintiffs challenge two final negative material injury determinations of the United States International Trade Commission (“ITC”): 1) Certain Cold-Rolled Steel Products from Australia, India, Japan, Sweden, and Thailand, Invs. Nos. 731-TA-965, 971-972, 979, 981 (Final), USITC Pub. 3536 (Sept.2002) (“Coldr-Rolled /”); and 2) Certain Coldr-Rolled Steel Products from Argentina, Belgium, Brazil, China,
Standard of Review
In reviewing the ITC’s final determinations, the Court will hold unlawful a determination that is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i). The ITC is entitled to appropriate deference in its interpretation of the material injury statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
The Court reviews the ITC’s factual findings whether various provisions of the material injury statute have been met to determine if they are supported by substantial evidence. 19 U.S.C. § 1516a(b)(l)(B)(i). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” • Consol. Edison Co. v. NLRB,
“As long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency’s conclusions, the court will not impose its own views as to the sufficiency of the agency’s investigation or question the agency’s methodology.” Ceramica Regiomontana, S.A. v. United States,
BACKGROUND
I. Procedural History.
On September 28, 2001, several domestic producers filed petitions with the United States Department of Commerce (“Com
On July 19, 2002, Commerce published its final affirmative determinations that cold-rolled steel imports from Australia, India, Japan, Sweden, and Thailand were being sold at less than fair value. Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products From Australia, 67 Fed.Reg. 47,509 (July 19, 2002), corrected by 67 Fed.Reg. 52,934 (Aug. 14, 2002); Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products from Japan, 67 Fed.Reg. 47,520 (July 19, 2002); Notice of Final Determination of Sales at Less Than Fair Value: Certain Coldr-Rolled Carbon Steel Flat Products from Thailand, 67 Fed.Reg. 47,521 (July 19, 2002); Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products from Sweden, 67 Fed.Reg. 47,522 (July 19, 2002). Commerce published its final affirmative determinations in the antidumping investigations of the remaining countries on October 3, 2002. Notice of Final Determination of Sales at Less Than Fair Value: Certain Coldr-Rolled Carbon Steel Flat Products from New Zealand, 67 Fed.Reg. 62,100 (Oct. 3, 2002); Notice of Final Determination of Sales at Less Than Fair Value: Certain Coldr-Rolled Carbon Steel Flat Products From the People’s Republic of China, 67 Fed.Reg. 62,107 (Oct. 3, 2002); Notice of Final Determination of Sales at Less Than Fair Value and Critical Circumstances: Certain Cold-Rolled Carbon Steel Flat Products From The Netherlands, 67 Fed.Reg. 62,112 (Oct. 3, 2002); Notice of Final Determination of Sales at Less Than Fair Value; Certain Cold-Rolled Carbon Steel Flat Products From France, 67 Fed.Reg. 62,114 (Oct. 3, 2002); Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold Rolled Carbon Steel Flat Products From Germany, 67 Fed.Reg. 62,116 (Oct. 3, 2002); Notice of Final Determination of Sales at Less Than Fair Value: Certain Coldr-Rolled Carbon Steel Flat Products From Venezuela, 67 Fed.Reg. 62,119 (Oct. 3, 2002); Notice of Final Determination of Sales at Less Than Fair Value and Critical Circumstances: Certain Cold-Rolled Carbon Steel Flat Products From the Rus
Commerce also published its final determinations in the countervailing duty investigations of Argentina, Brazil, France, and Korea on October 3, 2002. Notice of Final Affirmative Countervailing Duty Determination: Certain Cold-Rolled Carbon Steel Flat Products From the Republic of Korea, 67 Fed.Reg. 62,102 (Oct. 3, 2002); Final Negative Countervailing Duty Determination: Certain Cold-Rolled Carbon Steel Flat Products From Argentina, 67 Fed.Reg. 62,106 (Oct. 3, 2002); Final Affirmative Countervailing Duty Determination: Certain Cold-Rolled Carbon Steel Flat Products From France, 67 Fed.Reg. 62,111 (Oct. 3, 2002); Final Affirmative Countervailing Duty Determination: Certain Cold-Rolled Carbon Steel Flat Products From Brazil, 67 Fed.Reg. 62,128 (Oct. 3, 2002). Commerce’s determination regarding Argentina was negative; however, it made affirmative determinations regarding Brazil, France, and Korea.
The final ITC determinations challenged in this action were published on September 13, 2002, and November 12, 2002, wherein the ITC determined that the domestic cold-rolled steel industry was not suffering present material injury or being threatened with material injury by reason of the subject imports. Coldr-Rolled I at 39, 45; Coldr-Rolled II at 13,18.
II. Applicable Law.
The ITC determines whether an industry in the United States is materially injured by reason of the subject imports in the final phase of antidumping and coun
Regarding volume, the ITC must consider whether the volume of subject imports is significant. Id. § 1677(7)(C)(i). The ITC must consider whether there has been significant price underselling and whether subject imports depress or suppress domestic prices to a significant degree in evaluating the subject imports’ effect on domestic prices. Id. § 1677(7)(C)(ii)(I-II). To determine the impact of the subject imports, the ITC must evaluate “all relevant economic factors which have a bearing on the state of the [domestic] industry.” Id. § 1677(7) (C) (iii). These factors include, but are not limited to: “decline in output, sales, market share, profits, productivity, return on investment, and [capacity utilization], factors affecting domestic prices, actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, ... negative effects on the existing development and production efforts of the domestic industry, ... [and] the magnitude of the margin of dumping.” Id. § 1677(7)(C)(iii)(I — V). The ITC must evaluate these factors “within the context of the business cycle and conditions of competition that are distinctive to the affected industry.” Id. § 1677(7)(C)(iii). The ITC “shall cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which ... petitions were filed ... on the same day ... if such imports compete with each other and with domestic like products in the [domestic] market.” Id. § 1677(7)(G)(i)(I).
Discussion
In Coldr-Rolled I and Cold-Rolled II, the ITC determined that “an industry in the United States is not materially injured ... by reason of imports of certain cold-rolled steel products.” Coldr-Rolled I at 3; Coldr-Rolled II at 1. The ITC’s specific findings are presented before the parties’ contentions in each section below. Plaintiffs challenge five aspects of the ITC’s final negative material injury determinations: 1) the ITC’s interpretation and application of the causation requirement under the material injury statute; 2) the ITC’s finding that the volume of subject imports was not significant; 3) the ITC’s finding that subject imports did not have significant effects on prices for the domestic like product; 4) the ITC’s finding that subject imports did not have an adverse impact on the domestic industry; 5) the ITC’s decision to not cumulate subject imports from Australia. (Mem. of Nucor Corp. in Support of Mot. Under R. 56.2 for J. on the Agency R. (“Nucor’s Br.”) at 11-13); (Mem. in Support of Mot. for J. on the Agency R. under R. 56.2 Filed by Pis. Bethlehem Steel Corp., National Steel Corp., and U.S. Steel Corp. (“Domestic Integrated Producers’ Br.”) at 13-16.)
I. The ITC’s Interpretation and Application of the Material Injury Statute’s Causation Requirement.
ITC’s Determination
In making its final negative material injury determination, the ITC considered the volume, price effects, and impact of the
At the outset, the ITC identified several conditions of competition that had an effect on the cold-rolled steel industry in the United States during the POI. Id. at 21. Specifically, the ITC considered the “restructuring” of the domestic cold-rolled steel industry during the POI, domestic sales conditions for cold-rolled steel, and the Section 201 safeguard proceedings and resulting tariffs.
First, the ITC noted that during the POI, the domestic “cold-rolled steel industry restructured significantly.” Id. at 24. The ITC stated that “Gulf States Steel ceased operations; Bethlehem, National, and Wheeling operated under Chapter 11 of the U.S. Bankruptcy Code; the operating assets of Heartland Steel and LTV were purchased by new owners ...; a purchase of operating assets of Acme Steel, which had ceased operations, is pending in bankruptcy court; and Cold Metal Products recently announced its intention to file for Chapter 11 bankruptcy and to close its Indianapolis and Youngstown plants.” Id.
Next, the ITC examined price and non-price factors that are important in purchasing decisions for cold-rolled steel. Id. at 26-27. The ITC found that importers reported an average 102-day lead time between order and delivery. Id. at 26. The ITC also found that approximately 55% of sales by domestic producers and 52% of sales by importers were on a contract basis. Id. The remaining sales were on a spot price basis. Id. The ITC noted that although contract prices are generally fixed for a certain period of time, spot prices can “have some impact on contract prices ... when new contracts are negotiated, expired contracts are renegotiated, or ... [when] sellers demand[ ] price increases or buyers demand[ ] price concessions under executory contracts when spot prices differ significantly from contract prices.” Id. The ITC noted that the domestic industry claimed that “the majority of contracts remained in place in 2002 at low prices that were negotiated in the fourth quarter of 2001.” Id. at 27.
After examining the volume of subject imports, the subject imports’ effect on domestic prices, and the impact of the subject imports on the domestic industry, the ITC concluded:
following the imposition of Section 201 relief, subject import volumes declined to minimal levels, and therefore we do not find the current volume of subject imports to be significant. Nor do we find that subject imports currently in the market are having significant adverse price effects, given their minimal presence in the U.S. market. Accordingly, we do not find that the present condition of the domestic industry is attributable in any material respect to the current subject imports, and we therefore do not find that any material injury currently being experienced by the domestic industry is by reason of the subject imports.
Id. at 39.
Parties’ Contentions
A. Nucor’s Contentions.
Nucor contends that as a matter of law, the ITC “applied an incorrect injury test in reaching a negative determination.” (Reply Br. of Nucor Corp. in Supp. of Mot. Under R. 56.2 For J. on the Agency R. (“Nucor’s Reply Br.”) at 4.) Nucor contends that the ITC’s analysis is flawed for three reasons: 1) the ITC “narrowly focused” on current imports; 2) the ITC failed to consider whether injury was being caused by imports that entered earlier in the POI; and 3) the ITC unreasonably relied on the effects of the Section 201 proceedings. (Id. at 4-5; Nucor’s Br. at 48.)
First, Nucor contends that the ITC has never based any prior material injury determination “so overtly” on current imports. (Nucor’s Reply Br. at 5.) Nucor highlights the ITC’s language in Cold-Rolled I that focuses on “current subject imports.” (Id. (citing Cold-Rolled I at 39).) Nucor contends that the statute requires the ITC to make an affirmative injury determination if subject imports are causing present material injury. (Id. at 5-6.) However, Nucor stresses that the statute does not mention current imports or require that the present injury be caused by current imports. (Id. at 7.) Nucor contends that the ITC’s determination placed “exclusive focus” on the last three months of the investigation, “elevating [the] last quarter ... [to] prominence.” (Id. at 8.) Nucor contends that the ITC’s determination “brushed aside, without explanation, data regarding 39 months of a 42-month investigation.” (Nucor’s Br. at 14.) Nu-cor asserts that, contrary to the ITC’s statement that its analysis included the entire POI, most of the ITC’s discussion focused solely on current imports in the second quarter of 2002. (Id. (citing Cold-Rolled I at 31 n. 182, 32).) Nucor argues that the ITC is required to base its decision on a “review of the entirety of the record.” (Id. (quoting Chr. Bjelland Seafoods A/S v. Untied States, 19 C.I.T 35, 43,
Second, Nucor asserts the ITC failed to adequately consider whether material injury was being caused by subject imports that were entered earlier in the POI. (Id. at 10.) Nucor emphasizes several of the ITC’s findings that it claims demonstrate that subject imports entered earlier in the POI were causing present material injury: (1) three producers declared bankruptcy during the POI; (2) the domestic industry suffered operating losses of $688 million in the first half of 2002; (3) low-priced contracts negotiated in 2001 continued to be honored in the first half of 2002; and (4) the domestic market showed declines in employment and capacity. ■ (Id. at 11-13 (citing Coldr-Rolled I at 26, 38-39).) Nu-cor contends that the ITC failed to explain why all of these declining economic conditions “failed to constitute current material injury.” (Id. at 13.) Nucor asserts that if the correct causation test had been applied, the ITC would have found that the domestic industry continued to suffer present material injury caused by imports that were entered earlier in the POI. (Id.)
Third, Nucor contends that the ITC cannot base its negative material injury determination on the effects of the Section 201 remedy. (Nucor’s Br. at 48.) Nucor asserts that the ITC’s reliance on the effects of the Section 201 tariffs is “misplaced as a matter of law.” (Id.) According to Nucor, the ITC essentially found that the Section 201 tariffs imposed by the President “were preventing the subject imports from injuring the domestic industry.” (Id.) Yet, Nu-cor contends that eleven of the twenty countries under investigation had dumping margins greater than 30%. (Id. (citing Cold-Rolled I at 1-8, Cold-Rolled II at I-5).) Nucor contends that the ITC’s negative material injury determination runs counter to the intention of the antidumping and countervailing duty laws “to equalize ... competitive conditions between foreign exporters ... and the domestic industry.” (Id. (quoting Seafoods II, 19 Ct. Int’l Trade at 43).) Nucor contends that the Section 201 tariffs do not “offset the full margin of dumping.” (Id.) Nucor concludes that the ITC’s reliance on the 30% Section 201 tariffs essentially “depriv[ed] the U.S. industry of the protection to which it is entitled under law.” (Id. at 49.)
B. Domestic Integrated Producers’ Contentions.
Domestic Integrated Producers contend that the ITC’s negative determination was based Upon the imposition of a causation requirement that is not in accordance with law. (Domestic Integrated Producers’ Br. at 16.) Domestic Integrated Producers assert that in order to make an affirmative determination under the statute, the ITC must find that the domestic industry is suffering “present material injury.” (Id. at 17.) However, Domestic Integrated Producers contend that in this case the ITC 'misinterpreted the statute to require that the present material injury be caused by current or present imports. (Id. at 18 (citing Seafoods I, 16 Ct. Int’l Trade at 953-954).) Domestic Integrated Producers contend that this requirement — “that current imports be causing injury” — is not in accordance with law. (Id.) Domestic Integrated Producers quote three specific passages from the ITC’s determination in Coldr-Rolled I that they claim demonstrate the ITC’s use of an improper causation requirement:
(1) [W]hile we recognize the higher subject import volumes earlier in the period, we find that the present volume of subject imports is not significant.
*1219 (2) [Sjubject imports currently entering the market are not suppressing current domestic prices to a significant degree. Thus, we find that subject imports are not adversely affecting domestic prices to a significant degree based on the current volume of subject imports and the increase in domestic prices in 2002.
(3) [W]e do not find the current volume of subject imports to be significant. Nor do we find that subject imports currently in the market are having significant adverse price effects.... Accordingly, we do not find that the present condition of the domestic industry is attributable in any material respect to the cwrent subject imports, and we therefore do not find that any material injury currently being experienced by the domestic industry is by reason of the subject imports.
(Id. (quoting Coldr-Rolled I at 33, 36, 39) (emphasis added).) In its reply brief, Plaintiff, United States Steel Corporation, asserts that the material injury statute does not focus on current imports. (Reply Br. in Supp. of Rule 56.2 Mot. for J. Upon the Agency R. of PI. U.S. Steel Corp. (“U.S. Steel’s Reply Br.”) at 2.) U.S. Steel contends that the statute clearly directs the ITC to determine if the domestic industry “is materially injured ... by reason of imports.” (Id. at 2-3 (quoting 19 U.S.C. § 1671d(b)).) However, U.S. Steel argues that by focusing on current imports, the ITC improperly added a limitation to the statute. (Id. at 3.)
Domestic Integrated Producers contend that if the ITC had applied the correct causation standard, the ITC would have been compelled by its own findings to make an affirmative injury determination based on the injury caused by imports that were entered earlier in the POI. (Domestic Integrated Producers’ Br. at 21.) Domestic Integrated Producers echo Nucor’s argument that the law requires the ITC to make an affirmative material injury determination if imports entered earlier in the POI are causing present material injury. (Id. at 18-19 (citing Seafoods I, 16 Ct. Int’l Trade at 953-954, Seafoods II, 19 Ct. Int’l Trade at 48).) Domestic Integrated Producers contend that the Court’s holding in Seafoods II should instruct this Court’s analysis. (Id. at 19.) Domestic Integrated Producers assert that in Seafoods II, the Court upheld an ITC affirmative material injury determination which found that, although current imports were minimal, earlier imports of salmon were causing present material injury to the domestic industry by impairing the domestic industry’s ability to raise capital at the end of the period of investigation. (Id. at 19 (citing Seafoods II, 19 Ct. Int’l Trade at 48).) Similarly, Domestic Integrated Producers argue that in this case earlier imports of cold-rolled steel caused present material injury to the domestic industry. (Id. at 21.) Domestic Integrated Producers contend that in prior investigations and in another forum, the ITC has argued that imports entered earlier in the POI can cause present injury. (Id. at 19-20 (citing Hot Rolled Steel Products From Argentina and South Africa, Invs. Nos. 701-TA-404 and 731-TA-898, 905 (Final), USITC Pub. 3446 (Aug.2001); Written Rebuttal of the United States, United States — Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248-249, 251-254, 258-259 (Nov. 26, 2002) at 39 ¶ 120).) U.S. Steel adds that any analysis that does not fully consider whether earlier imports are causing present material injury is “incomplete as a matter of law,” and the ITC’s determination in this case should be remanded for this reason. (U.S. Steel’s Reply Br. at 5, 9-10.)
Domestic Integrated Producers point to evidence on the record that they claim supports a finding that earlier imports caused present material injury in this case. (Domestic Integrated Producers’ Br. at
Finally, Domestic Integrated Producers claim that the ITC erroneously based its negative material injury determination on speculation that the Section 201 tariffs will alleviate future injury. (Id. at 25.) Domestic Integrated Producers contend that “if a finding of present material injury is otherwise warranted,” the ITC cannot make a negative determination “simply because circumstances have changed in. a manner that may alleviate injury in the future.” (Id.) Domestic Integrated Producers assert that the ITC’s analysis of the effect of the Section 201 tariffs on the domestic industry is “little more than guesswork.” (Id.) Domestic Integrated Producers contend that the ITC used the Section 201 tariffs to “alter the legal standard to be used in determining whether the requisite injury has been proven.” (Id.) Domestic Integrated Producers highlight several differences between AD/CVD relief and Section 201 relief including: 1) several countries subject to these AD/CVD investigations were exempt from the Section 201 tariffs; 2) numerous products covered by these AD/CVD investigations are not covered by the Section 201 tariffs; and 3) Section 201 tariffs expire in three years whereas Title VII duties can last indefinitely. (Id. at 26.) Domestic Integrated Producers contend that these differences should have precluded the ITC from using the Section 201 relief in its analysis. Id.
Domestic Integrated Producers conclude that the ITC’s final determination is not in accordance with law because the ITC applied an incorrect causation standard, failed to consider earlier imports, and improperly considered the Section 201 relief. (Id. at 28-29.)
C. Defendant’s Contentions.
First, Defendant contends that Plaintiffs’ assertions regarding the ITC’s focus on current imports “ignores that statute’s remedial purpose, the prospective application of duties and the [ITC’s] concomitant discretion to rely on current data.” (Mem. of Def. U.S. Int’l Trade Comm’n in Opp’n to Pis.’ Mot. for J. on the Agency R. (“Def.’s Br.”) at 42.) Defendant contends that the Court has reasoned that the anti-dumping and countervailing duty laws “ ‘are intended merely to prevent future harm to the domestic industry by reason of unfair imports that are presently causing material injury.’ ” (Def.’s Br. at 43 (quoting Chaparral Steel Co. v. United States,
Second, Defendant contends that contrary to Plaintiffs’ assertions, the statute does not require the ITC to. reach an affirmative injury determination based on
D. Defendant-Intervenors’ Contentions.
Defendant-Intervenors contend that Plaintiffs’ argument asks this Court and the ITC to “ignore the remedial purpose of the [antidumping and countervailing duty] statute and impose punitive ... duties to punish past allegedly injurious activity that no longer continues.” (Mem. in Support of the Determination of the U.S. Int’l Trade Comm’n and in Opp’n to Nucor, et al’s [sic] Rule 56.2 Mot. for J. on the Agency R. (“Def.-Intvs.’ Br.”) at 15.) First, Defen-danb-Intervenors contend that the ITC properly focused on the most recent period in its final determinations and correctly found that there was no present “causal nexus between subject imports and injury.” (Id. at 14-15.) Second, Defendant-Intervenors contend that contrary to Plaintiffs’ claims, the ITC is not legally precluded from considering the impact of the Section 201 proceedings on the domestic market. (Id. at 18.)
First, Defendant-Intervenors assert that the ITC did not misapply the legal causation standard in considering the injury caused by subject imports. (Id. at 18-19.) Defendant-Intervenors contend that the parties do not dispute that the statute “requires a causal nexus between the subject imports and the injury.” (Id. at 19 (citing Gerald Metals, Inc. v. United States,
Analysis
A. The ITC Properly Interpreted and Applied the Causation Requirement Under the Material Injury Statute.
The Court holds that the ITC correctly interpreted and applied the causation requirement in finding no present material injury to the domestic industry. Under the material injury statue, Congress instructs the ITC to determine “whether an industry in the United States is materially injured ... by reason of imports.” 19 U.S.C. §§ 1671d(b)(l), 1673d(b)(l).
This Court accords substantial weight to the agency’s interpretation of the statute that it administers. See Chevron,
In this case, the statute is “silent ... with respect to the specific issue,” id., of whether the ITC may permissibly focus on current imports in determining material injury. The statute states that injury must be “by reason of imports,” and makes no mention of whether the ITC’s determination must rest on current imports, earlier imports, or both. 19 U.S.C. §§ 1671d(b)(l), 1673d(b)(l). It is well-settled that the material injury statute requires that the domestic industry be suffering present material injury. Chaparral Steel,
Antidumping and countervailing duties are meant “to afford prospective relief to the domestic industry which would otherwise experience further injury due to the continued importation of unfairly traded merchandise.” Seafoods II, 19 Ct. Int’l Trade at 44 n. 22. Antidumping and countervailing duty laws “are not penal, retaliatory, or compensatory”; rather, they “are intended to equalize particular aspects of future competitive conditions between foreign exporters to the United States and the domestic industry.” Id. (emphasis added) (citing Imbert Imports, Inc. v. United States,
In reviewing other determinations, this Court has maintained that “the [ITC] permissibly focuses on the more recent ... period in evaluatihg the causal effects of the subject imports.” Taiwan Semiconductor Indus. Ass’n v. United States,
In Seafoods II, the Court held that the ITC must examine data, within a time frame as close as possible to vote day in making its present material injury determination. Seafoods II, 19 Ct. Int’l Trade at 44 n. 22. “[Wjithin the time frame established by the ITC for its investigation, relatively older information serves to provide a historical frame of reference against which a ‘present’ (i.e.[,] as recent to vote day as possible, given the limitations of the collected data) material injury determination is to be made, and without which any assessment of the extent of changed circumstances would be impossible.” Id. (citations omitted).
Here, the ITC’s negative material injury determination clearly rested on its findings regarding current subject imports. See Cold-Rolled I at 39. Contrary to Plaintiffs’ contentions, however, the ITC did not “impose a requirement that current imports be causing injury.” (Domestic Integrated Producers’ Br. at 16-17.) Rather, in keeping with the remedial purpose of the trade laws, the ITC used current subject import data that was “as nearly contemporaneous to vote day as possible” to evaluate the causal relationship between the subject imports and any material injury. . See Seafoods II, 19 Ct. Int’l Trade at 44 n. 22. As Defendant and Defendant Intervenors contend, the ITC’s negative determination was based upon an examination of the entire period of investigation with a focus on the current 2002 imports. As discussed below in the separate factor analyses, the ITC considered data from 1999, 2000, 2001, and 2002 to determine the significance of volume, price effects, and impact of the subject imports on the domestic industry. See Coldr-Rolled I at 32-39. As the Court directed in Seafoods II, the ITC used the earlier data from 1999-2001 as “a historical frame of reference” ■ to make its injury determination. See Seafoods II, 19 Ct. Int’l Trade at 44 n. 22. Thus, the Court holds that the ITC reasonably focused on current subject imports in its application of the material injury statute’s “by reason of imports” causation requirement.
1. The ITC Adequately Considered the Effects of Subject Imports Entered Earlier in the POI and Reasonably Concluded that They Were Not Causing Present Material Injury to the Domestic Industry.
This Court reviews the ITC’s factual determinations of whether the various provisions of the statute have been met in this case to determine if they are supported by substantial evidence. 19 U.S.C. § 1516a(b)(l)(B)(i); see also, Enercon GmbH,
This Court finds that the ITC adequately considered the effects that the earlier imports continued to have on the domestic industry at the end of the POI and reasonably concluded that the effects of earlier imports were insufficient to find present material injury. Although the ITC did not explicitly state that earlier imports were not causing present material injury, “the agency’s path may be reasonably discerned,” Ceramica Regiomontana,
2. The ITC’s Consideration of the Effect of the Section 201 Proceedings on the Domestic Industry is in Accordance with Law.
The material injury statute directs the ITC to evaluate all relevant economic factors (i.e., volume, price effects, and impact) “within the context of the business cycle and conditions of competition that are distinctive to the affected industry.” 19 U.S.C. § 1677(7)(C). Although Plain
Here, the ITC found that “the Section 201 investigation and the President’s remedy fundamentally altered the U.S. market for many steel products, including cold-rolled steel.” Cold-Rolled I at 28. The ITC considered the evidence of a significant event that occurred “between the date of the petition and vote day,” Seafoods II, 19 Ct. Int’l Trade at 44 n. 22, namely, the Section 201 proceedings. See Cold-Rolled I at 27-30. The ITC examined certain data to determine the impact of the Section 201 proceedings on the domestic industry. See id. at 21, 28-30. As detailed in Part II.Analysis.A.1 below, the ITC’s examination of data from before and after the Section 201 proceedings demonstrated that the Section 201 proceedings were a significant condition of competition that affected the domestic cold-rolled steel industry. Although, as Plaintiffs contend, there are differences in the scope and nature of the Section 201 proceedings and AD/CVD investigations, the ITC considered these differences in making its final determinations. See, e.g., id. at 27 (listing the countries that were exempt from the Section 201 tariffs, but which were included in these AD/CVD investigations); id. at 28 (taking into account the cold-rolled steel products excluded from the Section 201 tariffs that were subject to these AD/CVD investigations). Compare id. at 27 (stating that the Section 201 tariffs were “30[%] ad valorum in the first year, 24[%] ad valo-rum in the second year, and 18[%] ad valorum in the third year”), with id. at 36 n. 222 and Cold-Rolled II at 12 n. 59 (considering the antidumping margins found by Commerce in these investigations). This Court holds that the ITC’s decision to take into account the Section 201 proceedings conforms with the remedial purposes of the trade laws and is otherwise in accordance with law.
II. The Volume of Subject Imports.
ITC’s Determination
The ITC found that the volume of subject imports was not significant. Id. at 33. The ITC recognized that from 1999 to 2001, the absolute volume of subject imports decreased slightly, but, at the same time, subject imports gained market share. Id. at 32. However, the ITC noted that in the first half of 2002, the subject imports experienced a “sharp decline in both the volume and market penetration.” Id.
In its discussion of conditions of competition, the ITC found that the Section 201 remedy “was the overwhelming factor in the decline in subject import volume in 2002, notwithstanding the pendency of these [AD/CVD] investigations.” Id. at 28. In finding that the Section 201 proceedings “fundamentally altered the U.S. market for many steel products, including cold-rolled steel,” the ITC focused on three sets of data: 1) subject import data following key events in the Section 201 proceedings; 2) import data for other flat-rolled steel products; and 3) questionnaire responses from domestic purchasers. Id. at 28-30.
Second, the ITC compared import data for hot-rolled and coated steel with import data for the subject cold-rolled steel to support its conclusion that the Section 201 remedy “was the overwhelming factor in the sharp decline in subject imports.” Id. at 30. The ITC noted that imports of hot-rolled and coated steel were included in the Section 201 proceedings, but were not subject to AD/CVD investigations. Id. After examining the import data, the ITC found similar sharp declines in the volume of imports for all three steel products following the imposition of the Section 201 relief. Id. The ITC also found that domestic spot prices of cold-rolled, hot-rolled, and coated steel, all of which were subject to the Section 201 tariffs, “exhibited similar trends and similar dramatic increases” after the Section 201 relief was announced. Id.
Third, the ITC cited the Purchasers’ Questionnaire Responses in which “79 of 94 purchasers ... said that the Section 201 tariffs had reduced subject import volumes, leading, inter alia, to higher prices, supply shortages, and some broken or renegotiated contracts.” Id. at 30 (citing Purchasers’ Questionnaire Responses (C.R.355, 369, 377, 380, 397, 399, 401, 408, 419, 961, 962, 966, 968)). The ITC concluded that the Section 201 relief “is having a major impact in the [domestic cold-rolled steel market] and was the over
The ITC noted that several developing countries subject to this material injury investigation were exempt from the Section 201 tariffs: Argentina, India, South Africa, Thailand, Turkey, and Venezuela. Id. at 27 (citing Annex to Presidential Proclamation 7529, ¶ 11(d)©). The ITC highlighted the fact that the Presidential Proclamation stated that these exemptions would be revoked if the developing countries undermined the effectiveness of the safeguard measures by increasing exports to the United States. Id.
After discussing Section 201’s influence on the domestic industry, the ITC addressed the effects that the initiation of these AD/CVD investigations had on the subject imports during the POI. Id. at 31. The ITC stated that it has been given discretion “to look to the time period that provides probative, reliable data ‘in as contemporaneous a time frame as possible.’ ” Id. (quoting Saarstahl,
Having found that the change in import data in 2002 was a result of the Section 201 proceedings, the ITC rejected the petitioners’ arguments to accord less weight to the post-petition data under § 1677(7)(I). Id. at 31. Thus, the ITC considered data from the full POI: January 1999 to June 2002. Id. The ITC compared the most recent volume data with data from the earlier part of the POI. Id. at 33. The ITC cited the following volume data regarding the earlier part of the POI: cumulative subject imports totaled approximately 2.48 million short tons in 1999; 1.68 million short tons in 2000; and 2.40 million short tons in 2001. Id. at 32. The merchant market
In conclusion, the ITC stated that although there were higher subject import volumes early in the POI, the ITC found that “the present volume of subject imports is not significant, in absolute terms or relative to domestic consumption or production.” Id. at 33.
Parties’ Contentions
A. Nucor’s Contentions.
Nucor contends that the ITC’s volume determination is unsupported by substantial evidence because the ITC incorrectly concluded that the Section 201 proceedings were the overwhelming factor in the decline of subject imports and unreasonably dismissed evidence that showed that the pending AD/CVD investigations caused the decline. (Nucor’s Br. at 16, 22-23.) Nu-cor contends that because these AD/CVD investigations caused the decline in subject import volume, the ITC should have discounted the post-petition data (data after September 2001) and focused on data from 1999 to 2001 which showed that the volume of subject imports was significant. (Id. at 27.)
Nucor contends that the ITC’s conclusion that the Section 201 relief was the “overwhelming factor” in the decline of subject imports is unsupported by substantial evidence. (Id. at 16.) First, Nucor asserts that the ITC’s “correlation between the sharp decline in subject imports and key events in the Section 201 proceedings” is “deficient and arbitrarily selective.” (Id.) Nucor contends that the Section 201 proceedings were initiated in June 2001, however, imports did not react to this request: “indeed, [import volumes] continued to increase in the fall of 2001.” (Id.) Nucor asserts that import volumes did dramatically decline in the “first month that would reflect decisions on import purchases that would be influenced” after the AD/CVD investigations were initiated. (Id.) Taking into account the 102-day lead time, Nucor asserts that the volume of subject imports should have responded to the AD/CVD investigations in January 2002. (Id. at 17.) Nucor contends that “[t]his is exactly what happened.” (Id.) Nucor asserts that the ITC acknowledged this “sharp decline” in volume in January 2002. (Id. (citing Cold-Rolled I at 30 n. 175).) However, Nucor contends that the ITC dismissed the correlation between this decline and the AD/CVD petitions and instead placed importance on the Section 201 proceedings. (Id.)
Nucor contends that the ITC’s correlation between key events and volume decline is further undermined by the “very real distinctions between” Section 201 relief and AD/CVD relief. (Id.) Nucor contends that relief under Section 201 is prospective with no possibility of retroactive duties, does not occur within an enforceable time frame, and has a delayed effective date. (Id. at 17-18.) Nucor contends that the ITC’s failure to take into account the differences between the AD/CVD and the Section 201 relief was unreasonable. (Id. at 19.) Nucor argues that these differences “mean that importers would have been unlikely to react immediately and uniformly to the [ITC’s Section] 201 remedy recommendation.” (Id. at 18.) Nucor contends that AD/CVD investigations, however, have an immediate effect on imports. (Id.) Nucor contends that because of the potential for retroactively imposed
Second, Nucor contends that the ITC’s volume trend comparisons of cold-rolled, hot-rolled, and coated steel imports do not support the conclusion that the Section 201 proceedings were the overwhelming factor in the decline in the volume of subject imports. {Id. at 21.) Nucor asserts that the ITC’s own comparisons show that the decline in cold-rolled steel imports was significantly greater than the decline in imports of hot-rolled and coated steel. {Id.) Nucor asserts that the ITC’s figures demonstrate that the decline in cold-rolled steel was 47.7% greater than the decline of hot-rolled steel imports, and 14.9% greater than the decline in coated steel imports. {Id. (citing Cold-Rolled I at 29).) Nucor contends that this significant difference indicates that other factors caused the greater decline in cold-rolled imports, namely the initiation of these AD/CVD investigations. {Id.)
Third, Nucor identifies two pieces of record evidence that it claims support its contention that the AD/CVD investigations had a more significant effect on the decline in subject imports in 2002 than the Section 201 proceedings:
1. Nucor notes that six developing countries that were subject to these AD/ CVD investigations were exempt from the Section 201 tariffs: Argentina, India, South Africa, Thailand, Turkey, and Venezuela. {Id. at 20 (citing Cold-Rolled I at 27).) Nucor contends that an analysis of the import volume trends from those exempt countries reveals that “something other than ... the Section 201 remedy” was affecting import volume. (Id.) Nucor asserts that subject imports from the six exempt countries totaled 191,988 tons in the first half of 2001, compared to only 22,410 tons in the first half of 2002. {Id. (citing Cold-Rolled I at 35 n. 210).) Further, Nucor notes that by the second quarter of 2002, imports were only 608 tons, “an unmitigated exit from the market.” (Id. at 20-21.) Nucor contends that the Section 201 remedy could not have been solely responsible for this dramatic decline in these imports because the countries were exempt from the Section 201 tariffs. (Id. at 21.) Nucor asserts that the “more logical conclusion” is that subject imports declined because of the initiation of the AD/CVD investigations. (Id.)
2. Nucor asserts that the ITC unreasonably dismissed an “econometric analysis that confirmed the impact” of the AD/ CVD investigations on subject imports. (Id. at 24.) According to Nucor, the ITC rejected an econometric analysis submitted by Nucor that contained two important data comparisons: (1) imports from countries subject to the Section 201 tariffs and subject to these AD/CVD investigations compared to imports from countries only subject to the Section 201 tariffs; (2) imports from countries only subject these AD/CVD investigations compared to imports from countries that were subject to neither these AD/CVD investigations nor
Nucor concludes that the record demonstrates that the AD/CVD investigations had a more significant impact on the subject import data in 2002; thus, the ITC should have exercised its discretion to discount the post-petition data. (Id. at 23.)
Alternatively, even if 2002 data are considered, Nucor contends that the ITC’s determination is not supported by substantial evidence because the subject imports occupied a significant percentage of market share in the first half of 2002. (Id. at 27.) Nucor contends that if market share is examined in terms of volume, subject imports held an open-market share of 11.2% even in the first quarter of 2002. (Id. (citing Final Staff Report at IV-29).) Nu-cor contends that in previous investigations, the ITC has determined that a lower market share was “significant.” (Id. at 27-28 (citing Certain Cut-to-Length Steel Plate from France, India, Indonesia, It
B. Domestic Integrated Producers’ Contentions.
Domestic Integrated Producers contend that the ITC’s determination that the volume of subject imports was not significant during the POI is not supported by substantial evidence. (Domestic Integrated Producers’ Br. at 29.) Domestic Integrated Producers assert that the ITC should have discounted the data after the AD/ CVD petitions were filed in September 2001 because record evidence shows that the pendency of these AD/CVD investigations was the most significant factor affecting the volume of subject imports. (Id. at 31.) Although Domestic Integrated Producers acknowledge that the ITC has discretion under § 1677(7)(I) to discount post-petition data, they contend that the ITC abused its discretion when it refused to accord less weight to data from 2002 because substantial evidence does not support the ITC’s finding that the Section 201 proceedings were the overwhelming factor in the decline of subject imports in 2002. (Id. at 31-32.) Domestic Integrated Producers contend that the ITC should have focused on volume data for 1999 through 2001 that demonstrate that the volume of subject imports during that time period of the investigation was significant. (Id. at 29-30.)
Domestic Integrated Producers contend that the ITC’s decision not to discount post-petition data was based on the ITC’s finding that the Section 201 proceedings were the overwhelming factor in the decline in subject imports in 2002. (Id. at 32.) Domestic Integrated Producers contend that this finding is not supported by substantial evidence. (Id.) Specifically, Domestic Integrated Producers contend that the ITC based its finding on three faulty premises: (1) a correlation between declines in monthly volume data for subject imports and key dates in the Section 201 process; (2) a comparison of the volume trend of cold-rolled steel imports with the volume trends for hot-rolled and coated steel imports; (3) the questionnaire responses from a majority of purchasers which indicated that the Section 201 relief had reduced import volume. (Id. (citing Cold-Rolled I at 28-30).) Domestic Integrated Producers argue that these premises fail to provide substantial evidence to support the ITC’s conclusion that the Section 201 relief was the overwhelming factor in the decline of subject imports. (Id.)
First, Domestic Integrated Producers contend that the ITC’s correlation between declines in monthly subject import volume and key events in the Section 201 proceedings is undermined by the fact that “the most significant decline in subject import volume occurred between December 2001 and January 2002.” (Id. at 33.) Domestic Integrated Producers contend that this volume decline occurred “before the Section 201 determination could have had any effect” in the market, and, instead, was as a result of the filing of the AD/CVD petitions in September 2001. (Id. at 32.) Domestic Integrated Producers assert that this volume decline between December 2001 and January 2002, is significantly greater than the decline between February and March 2002 “cited by the [ITC] as evidence of the impact of the announce
Second, Domestic Integrated Producers challenge the ITC’s comparison of subject import volume trends with hot-rolled and coated steel import volume trends. (Id. at 38.) Domestic Integrated Producers contend that it is unclear if the hot-rolled and coated steel import data is on the record because the ITC did not provide adequate citations to the information. (Id. at 39.) Domestic Integrated Producers assert that the ITC’s citation to “official Commerce statistics” is insufficient. (Id. (citing Cold-Rolled I at 29 n. 171).) Domestic Integrated Producers assert that without accurate citations, “it is impossible to evaluate whether the [ITC’s] determination is based on substantial evidence.” (Id. at 40.) Domestic Integrated Producers also contend that the ITC failed to release these “official Commerce statistics” to the parties and failed to provide the interested parties with an opportunity to comment on the data as required under § 1677m(g). (Id. at 41.)
Domestic Integrated Producers assert that the ITC’s analysis of hot-rolled steel imports is “particularly troubling” because the ITC excluded Korean imports from its analysis “even though Korea was one of the countries covered by the Section 201 tariffs.” (Id. at 42.) Domestic Integrated Producers note that the ITC explained that this was “‘pursuant to an exclusion request granted to POSCO, although the exclusion was not country-specific.’ ” (Id. (quoting Cold-Rolled I at 29 n. 171).) However, Domestic Integrated Producers note that the ITC did not provide any other information regarding this exclusion. (Id.) Domestic Integrated Producers contend that the ITC’s exclusion of Korean imports from the hot-rolled steel data “is inexplicable and indefensible.” (Id. at 43.) Domestic Integrated Producers contend that if the ITC had included Korean imports in its analysis of hot-rolled imports, the comparison between subject import volumes and hot-rolled import volumes “would have been revealed to be grossly dissimilar.” (Id. at 44.) Domestic Integrated Producers contend that this dissimilarity further supports their assertion that “the Section 201 remedy was not the ‘overwhelming factor’ in subject import decline.” (Id.)
Domestic Integrated Producers contend that the ITC’s comparison of cold-rolled, hot-rolled, and coated steel is irrational because it contradicts the ITC’s reasoning elsewhere in its final determinations. (Id. at 46.) Domestic Integrated Producers note that in its comparison, the ITC excluded hot-rolled and coated steel import data from countries that were exempt from the Section 201 tariffs. (Id.) Domestic Integrated Producers note that earlier in its determination, the ITC stated that
In their third challenge, Domestic Integrated Producers contend that the ITC’s reliance on the Purchasers’ Questionnaire Responses to support its conclusion that the Section 201 proceedings were the overwhelming factor in the decline in subject imports is not supported by substantial evidence. (Id. at 49.) Domestic Integrated Producers note that the ITC found that the 79 out of 94 purchasers replied that the Section 201 tariffs had reduced subject import volumes. (Id. (citing Cold-Rolled I at 30).) However, Domestic Integrated Producers contend that the producers responded that both the Section 201 tariffs and these AD/CVD investigations reduced subject import volumes. (Id. at 50 (citing Coldr-Rolled I at 30 n. 174; Final Staff Report at II — 3).) Domestic Integrated Producers assert that this evidence undercuts the ITC’s conclusion that the Section 201 remedy was the overwhelming factor in the decline in subject import volume. (Id.)
Domestic Integrated Producers also contend that the ITC failed to adequately address record evidence that demonstrated that subject imports from the developing countries exempt from the Section 201 tariffs declined by 99.58% in the second quarter of 2002 as compared to the second quarter of 2001. (Id. at 44-45 (citing Final Staff Report at Table J-2).) Domestic Integrated Producers contend that this evidence supports its contention that the AD/ CVD investigations had a greater effect on subject imports than the Section 201 proceedings. (Id. at 45.)
Lastly, Domestic Integrated Producers contend that, contrary to its obligation under § 1677f(i)(3)(B), the ITC failed to address several pieces of evidence demonstrating that the Section 201 proceedings were not the overwhelming factor in
Domestic Integrated Producers conclude that the record does not provide substantial evidence to support the ITC’s conclusion that the Section 201 remedy was the overwhelming factor in the decline in subject import volumes. (Id. at 52.) Rather, Domestic Integrated Producers argue that the record evidence supports the finding that the AD/CVD investigations had a significant effect on subject imports; thus, the ITC’s refusal to accord less weight to the post-petition data was an abuse of discretion. (Id.) Had the ITC discounted the post-petition 2002 data, Domestic Integrated Producers contend that the record evidence demonstrates that subject import volumes were significant during the earlier part of the POI. (Id.)
C. Defendant’s Contentions.
Defendant contends that the ITC’s finding that the volume of subject imports was not significant is supported -by substantial evidence. (Def.’s Br. at 38.) Defendant asserts that Plaintiffs do not argue that the subject volume of imports in 2002 was significant; rather, according to Defendant, Plaintiffs’ argument is that the 2002 data should have been discounted and only the data from 1999-2001 should have been evaluated in the ITC’s volume analysis. (Id.) Defendant contends that the ITC properly examined the entire POI including the post-petition data from 2002. (Id.)
First, Defendant asserts that Plaintiffs’ selective presentation of the record to the Court is evidence that Plaintiffs are asking this Court to conduct de novo review. (Id. at 45.) Defendant contends that Plaintiffs make their volume arguments only using volume data from 1999 to 2001. (Id. at 44.) Defendant acknowledges that the ITC emphasized the more recent data, but contends that the ITC examined the entire investigation period and specifically examined the volume of subject imports from 1999 through the first half of 2002. (Id. at 39, 42.) Additionally, Defendant asserts that Plaintiffs’ discussion of the volume data is incomplete because they only reference import volume in terms of the merchant market, whereas the ITC’s analysis focused on the merchant market while also considering the total market data. (Id. at 44-45 (citing Cold-Rolled I at 30; SAA at 852, 1994 U.S.C.C.A.N. at 4185).) Defendant contends that the Court should not be persuaded by Plaintiffs’ selective presentation of the record to re-weigh the evidence that was before the ITC, but should examine the ITC’s determination to see if it is legally defective. (Id. at 45-46 (citing Universal Camera Corp. v. NLRB,
Defendant contends that under § 1677(7), the ITC has the discretion to disregard post-petition data, but notes that “[n]othing in the statute compels] the [ITC] to exercise its discretion.” (Id. at 48.) Defendant argues that there is no presumption that pending AD/CVD investigations affect import data. (Id. at 49.)
Defendant contends that substantial evidence in the record supports the ITC’s finding that the Section 201 proceedings had an overwhelming impact on subject imports. (Id. at 50.) Defendant contends that the ITC made specific findings regarding the correlation between the decline in import volume and key events in the Section 201 process. (Id. - at 50-51.) Defendant highlights the ITC’s factual findings regarding the dramatic decline in the volume of subject imports after the ITC announced its Section 201 remedy recommendations and after the President announced the Section 201 tariffs. (Id. at 51-52.)
Defendant discounts Plaintiffs’ focus on the decline in imports from December 2001 to January 2002, after the AD/CVD petitions were filed in this case. (Id. at 53-55.) Defendant notes that Plaintiffs fail to mention that the December 2001 import levels were “anomalously high.” (Id. at 54.) Defendant asserts that when the low import levels in January 2002 are viewed in context of the entire record, the decline “is far less significant” than Plaintiffs contend. (Id.) Additionally, Defendant notes that the ITC recognized this “sharp decline” in January 2002; however, Defendant contends that the ITC properly focused instead on the more dramatic declines following key events in the Section 201 proceedings. (Id. at 52.) Unlike the Plaintiffs’ selective presentation of the December to January decline in isolation, Defendant notes that the ITC took into account the various market shifts in makings its correlations between key events and the decline in import volume to present a more accurate picture of the domestic market. (Id. at 55-56.)
Defendant asserts that Plaintiffs’ argument that the pending AD/CVD investigations had a significant impact on volume is undermined considering that the volume of subject imports increased slightly in February 2002, well after the AD/CVD petitions were filed. (Id. at 56.) Further, Defendant notes that the provisional anti-dumping duties in these investigations were not even announced until May 2002; thus, any effect that those provisional duties would have had on the domestic market would not have been felt until the end of June 2002, after the POI ended. (Id. at 49-50.)
Next, Defendant contends that the ITC’s volume trends comparison between subject imports, hot-rolled steel imports, and coated steel imports was reasonable. (Id. at 57.) Defendant asserts that the ITC properly compared these volume trends because all three products were subject to the Section 201 tariffs. (Id.) Defendant addresses Domestic Integrated Producers’ contention that the data is from an unknown source by stating that the data, footnoted as “from official Commerce statistics,” are “publically available in various forms, including the [ITC’s] Trade Da-taweb online service.” (Id. at 58-59 (citing Cold-Rolled I at 29 n. 171).) Defendant contends that the hot-rolled and coated steel volume data were part of an ongoing discussion on the record and Domestic Integrated Producers “have had ample opportunity ... to comment” on this data during the administrative process. (Id. at 59-61 (citing Prehr’g Br. of Nucor et al. Ex. 2 at 8 (P.R. 128) (C.R.259); 08/26/02 email from Mark Paulson to Karen Taylor and Commission staff (C.R.915); Worksheets Karen Taylor — -Hot-Rolled and Corrosion Resistant Imports (Aug. 21, 2002) (C.R.813).) Defendant argues that
As to the exclusion of certain data from Korea in the ITC’s volume trends comparison, Defendant contends that the ITC properly excluded all Korean hot-rolled data. {Id.) Defendant contends that the ITC’s exclusion of Korean data was reasonable because UPI, a joint venture between a domestic producer and a Korean producer, had obtained an exclusion from the Section 201 tariffs for a certain quantity of hot-rolled imports. {Id.) Defendant contends that the goal of ITC’s comparison was to “observe trends in hot-rolled steel imports” and that this goal was better achieved by excluding all Korean data even though the Section 201 exclusion was for UPI only. {Id. at 62.) Defendant also contends that the ITC’s choice to compare all cold-rolled steel imports subject to these investigations with only those hot-rolled and coated imports from countries subject to Section 201 tariffs was reasonable because it supported the objective of the ITC’s analysis: “to compare the impact of the [AD/CVD] petitions and ■ the impact of the Section 201 remedy.” {Id. at 64.) Defendant contends that this choice is not contrary to the ITC’s prior statements in Coldr-Rolled I regarding the exempt countries. {Id.) Further, Defendant contends that the volume trend comparisons were but one part of the ITC’s overall analysis of the Section 201 proceedings’ effect on subject imports. {Id.)
Defendant points to the Purchaser Questionnaire Responses as additional support for the ITC’s finding that the Section 201 proceedings were the overwhelming factor in the decline of subject imports. {Id. at 66.) Defendant notes that the ITC found that a majority of purchasers indicated that the Section 201 investigation affected the volume of subject imports. {Id. (citing Coldr-Rolled I at 39-40).) Defendant contends that the ITC’s finding is further supported because more purchasers (79 out of 94) responded that the Section 201 investigation reduced import volumes, than purchasers who responded that the pendency of these AD/CVD investigations affected imports (70 out of 93). {Id.) Defendant also notes that during the administrative process, Plaintiffs acknowledged that “Section 201 has been a significant factor in improved market conditions for the industry.” {Id. at 67 (quoting Cold-Rolled I at 30 n. 174, in turn quoting Prehr’g Br. of Bethlehem Steel Corp., National Steel Corp., and U.S. Steel Corp. (Domestic Integrated Producers’ Prehr’g Br.”) at 50-51 (P.R. 130) (C.R.251)).)
Regarding Plaintiffs’ contentions about the developing countries that were exempt from the Section 201 tariffs, Defendant contends that Plaintiffs are attempting to “mask a request for de novo review as an assertion that their argument, below was not addressed.” {Id.) Defendant contends that the ITC did address Plaintiffs’ argument that imports from the six developing countries exempt from Section 201 relief continued to decline during the POI. {Id. at 67-68.) Contrary to Plaintiffs’ contention that this decline was the result of the impact of the AD/CVD petitions, Defendant asserts, as the ITC discussed in Coldr-Rolled I, that the developing countries did not know that they would be exempt from Section 201 tariffs until after the President’s announcement in, March 2002. {Id. at 68.) Thus, during the first half of 2002, imports from these developing countries would have reacted as though they were going to be subject to the Section 201 tariffs. {Id.) Further, Defendant asserts that the ITC is not obligated to address every argument on the record. {Id. at 67-68 (citing Granges Metallverken v. United States,
Defendant argues that Nucor’s alternative contention that the subject imports occupied a significant percentage of market share by volume throughout the POI is without merit. (Id. at 46.) Defendant asserts that Nucor ignores the fact that ITC determinations are sui generis when Nu-cor cites prior ITC determinations as support for its alternative contention. (Id.) Defendant contends that Nucor’s comparison of the percentage of market share in this case with the percentage found in other ITC determinations is without merit because the courts have long recognized that ITC determinations “involved the unique interaction of many variables and, therefore, a particular circumstance in a prior [ITC] investigation is irrelevant in a subsequent investigation.” (Id.) Defendant contends that the ITC is not required to explain contrasting findings in prior investigations; rather, the ITC is only required to provide an explanation if it deviates from a long-standing practice. (Id. at 47.) Defendant contends that Nucor fails to present any evidence that suggests that the ITC has deviated from a long-standing practice in its volume analysis in this case. (Id.)
D. Defendant-Intervenors’ Contentions.
Defendant-Intervenors contend that the ITC’s finding that the subject import volume was not significant is supported by substantial evidence. (Def.-Intvs.’ Br. at 26.) Defendant-Intervenors contend that the evidence demonstrates that the volume of subject imports declined to minuscule levels by the end of the POI. (Id.) Defendant — Intervenors assert that Plaintiffs have not provided any factual basis to contradict the ITC’s finding that the volume of subject imports was not significant by the end of the POI. (Id. at 27.) Defendant — Intervenors contend that the subject imports’ market share “remained essentially flat over the [POI] before declining radically in 2002.” (Id. at 28 (citing Cold-Rolled I at 32-33).) Based on these facts, Defendant-Intervenors assert that it was reasonable for the ITC to find that the volume of subject imports was insignificant. (Id. at 29.)
First, contrary to Plaintiffs’ contentions that the ITC should have disregarded post-petition data, Defendant-Intervenors assert that the law grants the ITC the discretion to discount post-petition data. (Id. at 16.) Defendani — Intervenors emphasize that the statute is written permissively, instructing that the ITC “may” reduce the weight accorded to post-petition data. (Id.) Defendani — Intervenors contend that the SAA and case law support the ITC’s discretion to accord less weight to post-petition data and “contemplate circumstances in which it would be inappropriate” to do so. (Id. (citing SAA at 854; ALTX,
Contrary to Plaintiffs’ contentions, Defendant-Intervenors assert that the ITC, in fact, considered both the effect of the AD/CVD petitions and the effect of the Section 201 proceedings on subject imports. (Id. at 29-30 (citing Coldr-Rolled I at 28).) Defendant-Intervenors contend that after considering both, the ITC reasonably determined that the Section 201 proceedings had an “overwhelming” effect. (Id. at 30.) Defendant-Intervenors contend that it was reasonable for the ITC to attribute the decline in import volume that occurred between December 2001 and January 2002 to both the filing of the AD/CVD petitions and the Section 201 proceedings. (Id. at 31-32 (citing Cold-Rolled I at 30 n. 175).) Defendanb-Intervenors note that the ITC found “subsequent dramatic declines [in imports] following each successive step in the Section 201 proceeding”; thus, it was reasonable for the ITC to attribute the December to January decline more to the Section 201 proceedings than to the filing of the AD/CVD petitions. (Id. at 32.)
DefendanNIntervenors contend that foreign producers and importers had an immediate incentive to stop importing subject imports in response to the Section 201 investigation. (Id. at 33.) DefendantAIn-tervenors contend that the same market uncertainty that is present after the initiation of an AD/CVD investigation “is common after the commencement of a Section 201 investigation.” (Id.) Defendant-Inter-venors also assert that because of the 102-day lead time between sale and entry, importers and foreign producers “needed to immediately anticipate import restrictions” after the ITC made its Section 201 recommendation in December 2001. (Id.)
Defendant-Intervenors address Plaintiffs’ contention regarding the ITC’s comparison of hot-rolled, coated, and cold-rolled steel import trends. (Id. at 36.) Defendant-Intervenors assert that the ITC’s comparison was a valid demonstration of the effect of the Section 201 proceedings. (Id.) Contrary to Plaintiffs’ assertion that the comparison was based on information not in the record, Defendant-Intervenors contend that the “record” is broadly defined to include all information that is before the ITC up to the time of its decision. (Id. at 37 (citing 19 U.S.C. § 1516a(b)(2)(A); Beker Indus. Corp. v. United States, 7 Ct. Int’l Trade 313, 314-315,
Defendant-Intervenors contend that the ITC reasonably excluded Korean imports from its comparison of hot-rolled import volume trends. (Id. at 41.) Defendant-Intervenors note that the exclusion granted to UPI, the Korea-United States joint venture, “is a matter of public record” and was discussed throughout the administrative hearings. (Id. at 42^43 (citing Hr’g Tr. at 166 (P.R. 157); Annex to Presidential Proclamation 7529).) Defendant — In-tervenors assert that the ITC needed to account for the exclusion and reasonably excluded all Korean imports. (Id. at 44.) Defendant-Intervenors also note that the import volume trends comparison was just one basis upon which the ITC found that the Section 201 proceedings were the overwhelming factor in import volume declines. (Id.)
Regarding Plaintiffs’ contentions about the Purchaser Questionnaire Responses, Defendant-Intervenors contend that the ITC specifically acknowledged the responses regarding the impact of the pending AD/CVD investigations on the domestic market and properly weighed the evidence to determine that the Section 201 investigations had a more significant impact. (Id. at 34.) Defendant-In-tervenors contend that it was reasonable for the ITC to conclude that the Section 201 proceedings were the “overwhelming factor” in the decline of subject imports because a larger percentage of purchasers responded that the Section 201 proceedings had an effect on subject import volume. (Id. at 35 (citing Cold-Rolled I at 30 n. 174).) Defendant-Intervenors contend that the presence of a smaller majority of purchaser responses indicating that the AD/CVD petitions also had an effect on import volume does not make the ITC’s conclusion unsupported or unreasonable. (Id.) Defendant-Intervenors assert that the ITC is given the discretion to weigh the evidence and the Court should not be persuaded by Plaintiffs’ contentions otherwise. (Id. at 36.)
Contrary to Plaintiffs’ contentions, Defendant-Intervenors assert that the ITC adequately addressed the volume decline of subject imports from the developing countries exempt from the Section 201 tariffs. (Id. at 46.) Defendant-Intervenors assert that the decline in volume was explained by the uncertainty of the exclusions until after the President’s announcement in March 2002 and by the warnings given to the developing countries in that announcement. (Id. at 47-48.)
Defendant-Intervenors contend that Nucor’s arguments regarding imports from non-subject countries were fully considered and rejected by the ITC during the administrative proceedings. (Id. at 45-46.) Defendant-Intervenors assert that the ITC reasonably “place[d] little weight” on the non-subject import data in determining that the Section 201 proceedings had a more significant impact on the decline in import volume than the AD/ CVD petitions. (Id. at 47 (quoting Cold-Rolled I at 35 n. 210).)
Finally, DefendantIntervenors summarily address Plaintiffs’ various contentions regarding evidence submitted to the ITC but not expressly addressed in its final determinations. (Id. at 69.) Defendant-Intervenors assert that the ITC is not required by statute to address every argument or piece of evidence introduced by the parties during the administrative process. (Id.) Defendant-Intervenors note
D efendant-Intervenors conclude that the ITC’s determination that the volume of subject imports was not significant is supported by substantial evidence. (Id. at 48.)
Analysis
A. The ITC’s Volume Finding is Supported by Substantial Evidence.
This Court holds that the ITC’s finding that the volume of subject imports was not significant is supported by substantial evidence. Under § 1677(7)(I), the ITC examined the effect that the pendency of the AD/CVD investigation had on post-petition data and determined not to reduce the weight accorded to the post-petition data. Cold-Rolled I at 31; 19 U.S.C. § 1677(7)(I). Accordingly, after examining data from the entire POI, the ITC found that “the present volume of subject imports is not significant.” Cold-Rolled I at 33.
First, the Court finds that the ITC reasonably exercised its discretion in deciding not to discount the post-petition data based on its finding that the Section 201 proceedings were the “overwhelming” factor in the decline of subject imports in 2002. Second, the Court holds that, based upon the record, including the post-petition data, the ITC’s determination that the volume of subject imports was not significant is supported by substantial evidence.
1. The ITC’s Finding that the Section 201 Proceedings were the Overwhelming Factor in the Decline of Subject Imports in the Most Recent Period Examined is Supported by Substantial Evidence; thus, the ITC Reasonably Exercised its Discretion in Deciding not to Discount the Post-petition Data.
The statute that guides the ITC’s consideration of post-petition data is written permissively. See 19 U.S.C. § 1677(7)(I). Although the ITC is required (“shall consider”) to examine the pending AD/CVD investigation’s effect of volume, price, and impact data, if the ITC finds that the AD/CVD investigation had an effect on the post-petition data, the ITC then has the discretion (“may”) to “reduce the weight accorded” to that data. Id; see also, Comm. for Fair Beam Imps.,
In this case, the ITC considered if any change in data was related to the pending AD/CVD investigations. See Cold-Rolled I at 28, 30 n. 175, 31 & n. 186, 34 n. 209. The ITC found that “both the pending investigations and the Section 201 investigation had an impact on subject import volumes.” Id. at 30 n. 175. However, the ITC concluded that the Section 201 proceedings were “the most significant factor in the decline of subject imports during the most recent period examined.” Id. The ITC expressly rejected the petitioners’ arguments to accord less weight to the post-petition data because it found that there was substantial evidence indicating that the change in post-petition data was attributable to the Section 201 proceedings. Id. at 31.
For the reasons discussed below, the Court holds that the ITC’s finding that the Section 201 proceedings were the overwhelming factor in the decline in subject import volume is supported by substantial evidence; thus, the ITC reasonably exercised its discretion in not discounting the post-petition data.
a. The ITC’s Correlation Between Key Events in the Section 201 Proceedings and the Decline in the Volume of Subject Imports was Reasonable.
This Court holds that the ITC’s correlation of key events with the decline in subject import volume is supported by substantial evidence. As required, the ITC articulated a “rational connection between the facts found and the choice made.” Bando Chemical Indus. v. United States,
First, the Court finds that Plaintiffs’ claim that the decline in volume from December 2001 to January 2002 undermines the ITC’s correlation is without merit. The ITC expressly “reeogniz[ed] that another sharp decline in subject import volume occurred between December
Second, the Court is not persuaded by Nucor’s arguments that importers react differently to AD/CVD investigations than they do to Section 201 investigations. Nu-cor’s contentions are speculative and are not supported by record evidence. Although there are undisputed differences between the two remedies, as discussed in supra Part I.Analysis.A.2., p. 31, the Court has maintained that the ITC “may consider the broader conditions of competition affecting the domestic industry in evaluating the significance of the volume of subject imports.” Taiwan Semiconductor Indus. Ass’n,
b. The ITC’s Volume Trends Comparison Between Hot-Rolled, Coated, and Cold-Rolled Steel Imports Was Reasonable.
This Court holds that the ITC’s volume trends comparison for other flat-rolled steel products was reasonable. As additional support for its conclusion that the Section 201 proceedings were the overwhelming factor in the decline of subject import volume, the ITC compared volume trends for other flat-rolled steel products which were not subject to pending AD/ CVD investigations, but which were subject to the Section 201 proceedings. Cold-Rolled I at 29. The ITC found that imports of hot-rolled steel and coated steel exhibited similar volume decline after the Section 201 proceedings were initiated. Id. The ITC compared the import volume from January to March 2002 with the import volume from April to June 2002. Id. The ITC found that imports of subject cold-rolled steel declined by 85.7%; imports of hot-rolled steel declined by 58.0%; and imports of coated steel declined by 74.6%. Id.
First, the Court finds that the ITC’s volume trends comparison was based on information in the record. Under 19 U.S.C. § 1516a(b)(2)(A), the record “shall consist of ... a copy of all information presented to or obtained by ... the
The Court finds that Plaintiffs’ contention that the ITC was required to provide them with an opportunity to comment on this import data under § 1677m(g) is without merit. Section 1677m(g)’s “statutory opportunity for comment applies only to information submitted ‘to’ the administering authority, not ‘by’ the administering authority.” Tung Mung Dev. Co.,
Next, the Court holds that the ITC reasonably excluded all Korean imports in its volume trends comparison of hot-rolled imports. In Cold-Rolled I, the ITC explained that the cold-rolled data included data from all countries subject to these AD/CVD investigations, and that the hot-rolled and coated steel data included data only from those countries covered by the Section 201 tariffs, except that hot-rolled import data from Korea was excluded “pursuant to an exclusion request granted to POSCO.” Cold-Rolled I at 29 n. 171. As Defendant and Defendant-Intervenors note, this exclusion was discussed by the parties during the administrative proceedings and referenced in the President’s Proclamation that was part of the administrative record before the ITC. See Annex to Presidential Proclamation 7529, ¶ ll(b)(xxiv); Hr’g Tr. at 166 (P.R. 157); Posthr’g Br. of the Korean Iron and Steel Association, POSCO, Hysco Steel Co., and Dongbu Steel Co., Ltd. at 2 n. 2 (P.R. 190) (C.R.288). Based on the exclusion granted under the Presidential Proclamation, the Court holds that the ITC reasonably excluded all hot-rolled data from Korea in its comparison of import volume trends to avoid skewing the data from other countries where certain producer’s imports were not granted specific exclusions. As Defendant notes, the goal of the ITC’s comparison was to “observe trends in hot-rolled steel imports” after the Section 201 tariffs were imposed. (Def.’s Br. at 62.) The ITC reasonably excluded all Korean hot-rolled data in achieving this goal.
c. The ITC’s Use of the Purchasers’ Questionnaire Responses Indicating that the Section 201 Relief had an Effect on Subject Import Volume was Reasonable.
Based on the record evidence, this Court holds that it was reasonable for the ITC to use the domestic purchasers’ questionnaire responses to support its finding that the Section 201 investigations and resulting remedy were the overwhelming factor in the decline of subject imports. In Cold-Rolled I, the ITC acknowledged purchasers’ responses regarding both the pending AD/CVD investigations and the Section 201 proceedings. Cold-Rolled I at 30 n. 174. In challenging the ITC’s reliance on these questionnaire responses, Plaintiffs are essentially asking this Court to shift the weight that the ITC accorded to the domestic producers’ responses regarding the Section 201 proceedings versus the AD/CVD petitions. “It is not the Court’s function to reweigh the evidence, but to decide whether the [ITC’s] determinations are supported by substantial evidence.” Granges Metallverken AB v. United States,
d. The ITC Adequately Addressed the Evidence Regarding Import Volumes from the Developing Countries Exempt from the Section 201 Tariffs.
Contrary to Plaintiffs’ contentions, the Court finds that the ITC adequately addressed the fact that cold-rolled imports from the developing countries exempt from the Section 201 tariffs continued to decline during the POI. See Cold-Rolled I at 35 n. 210. The ITC explained this decline by reasoning that importers and exporters did not know that subject imports from these countries would be exempt from the Section 201 tariffs until after the President’s announcement in March 2002. Id. Further, the ITC provided five additional reasons why subject imports from these developing countries were insignificant and were likely to remain insignificant: “their current and historically very low [import] levels, the Section 201 monitoring measures applied to these countries, the availability of other markets to the subject producers, the relatively low share of production exported to the United States by these countries during the period examined, and the availability of additional capacity in the United States to supply demand.” Id. at 44. This Court finds that the fact that imports from these countries continued to decline through the POI does not detract from the reasonable
e. The ITC Reasonably Rejected the Econometric Analysis Provided by Nucor during the Administrative Proceedings.
This Court holds that the ITC adequately examined the econometric analysis submitted by Nucor during the administrative proceedings and articulated a satisfactory explanation for placing little weight on the analysis. As the Court indicated earlier, “[i]t is up to the ITC to weigh evidence.” ALTX,
f. The Court Finds that Plaintiffs’ Other Arguments Regarding Volume are Without Merit.
The Court holds that Plaintiffs’ other arguments regarding volume are without merit. First, the Court finds that the ITC Nucor’s alternative contention that the subject imports occupied a significant percentage of market share by volume is without merit. Nucor’s argument rests on a comparison of the findings in these determinations with the findings in prior ITC determinations. {See Nucor’s Br. at 27-28.) “[I]t is [a] well-established proposition that the ITC’s material injury determinations are sui generis; that is,
Second, the Court presumes that the ITC considered all of the evidence on the record and finds that the ITC was not required to address certain evidence submitted by Domestic Integrated Producers: specifically, a certain report regarding imports, a quote from one foreign producer, and a news articles that quoted Russian steel producers. {See Domestic Integrated Producers’ Br. at 50-51 (citing Domestic Integrated Producers’ Posthr’g Br. Exs. 12, 13, 54 (P.R. 193) (C.R.294)).) According to Domestic Integrated Producers, this evidence demonstrated Section 201’s limited effect on the importation of subject imports. {See Domestic Integrated Producers’ Br. at 51.) Under 19 U.S.C. § 1677f(i)(3)(B), “the [ITC] shall include in a final determination of injury an explanation of the basis for its determination that addresses relevant arguments that are made by interested parties.” 19 U.S.C. § 1677f(i)(3)(B). However, “the fact that certain information is not discussed in [an ITC] determination does not establish that the [ITC] failed to consider that information because there is no statutory requirement that the [ITC] respond to each piece of evidence presented by the parties.” Granges Metallverken,
2. The ITC’s finding that the volume of subject imports was not significant is supported by substantial evidence.
As discussed above, the ITC has the discretion to focus on the data nearest to vote day. See supra Part I.Analysis.A, pp. 26-27; see also, Seafoods II, 19 Ct. Int’l Trade at 44 n. 22 (“[0]lder information serves to provide a historical frame of reference against which a ‘present’... material injury determination is to be made, and without which any assessment of the extent of changed circumstances would be impossible.”). Thus, based upon substantial evidence in the record demonstrating the dramatic decline in import volumes during 2002, see Cold-Rolled I at 32-33, this Court holds that the ITC reasonably determined that the volume of subject imports was not significant.
III. The Effect of Subject Imports on Domestic Prices.
ITC’s Determination
As an initial matter, the ITC noted that 55% of domestic sales and 52% of imported sales are made by contracts. Cold-Rolled I at 26. The ITC stated that even though most contracts have fixed prices and quantities, spot prices may influence contract prices. Id. Specifically, the ITC noted that although “contract prices are generally ‘locked in’ and therefore lag behind spot prices for a period, the record also indicates that spot prices do have some impact on contract prices. Spot prices impact contract prices in the cold-rolled market when new contracts are negotiated, expired contracts are renegotiated, or an executory contract contains a meet-or-release provision.” Id. The ITC also remarked that there was “some evidence on this record of sellers demanding price increases or buyers demanding price concessions under executory contracts when spot prices differ significantly from contract prices.” Id. Additionally, the ITC noted that “during the first half of 2002, the spot market prices for cold-rolled steel increased more rapidly (10.7 percent) than U.S. producers’ open market average selling prices, which were essentially unchanged (-0.5 percent) and that over half of domestic producers’ cold-rolled sales were under contract.” Id. at 27 n. 158 (citations omitted). The ITC acknowledged the petitioners’ argument that “the majority of contracts remained in place in 2002 at low prices that were negotiated in the fourth quarter of 2001.” Id. at 26-27 (citing Posthr’g Br. of Nucor et al. at 25-28 (P.R. 192) (C.R.291)).
In its underselling analysis, the ITC gathered quarterly price comparisons from domestic producers on two products sold in the United States. Id. at 34. Of the 455 possible comparisons, domestic producers reported that subject imports undersold domestic products in 296 quarters and oversold domestic products in 159 quarters. Id. Although the ITC noted more instances of underselling than overselling, the ITC found that the data showed that “most of the underselling occurred earlier in the period examined, pri-
The ITC noted that domestic prices declined through 2001, as subject imports’ market share in the United States increased. Id. at 84. However, the ITC found recovering domestic prices in 2002 after the imposition of the Section 201 relief. Id. at 34-35. The ITC found that spot prices increased from $340 per ton in June 2001 to $435 per ton in June 2002. Id. at 35. Further, the ITC compared the prices for the two specific products and noted that prices for the first product rose by 7.2% in sales to service centers, and by 2.7% in sales to end users from the end of 2001 to the second quarter of 2002. Id. at 35 n. 212. Domestic prices for the second product rose by 15.1% in sales to service centers and by 9.8% in sales to end users over the same time. Id. The ITC found that prices in the first half of 2002 had not risen to the highest levels of the POI, but attributed this to the fact that “many contracts continue to be honored at the price levels negotiated at the end of 2001 when prevailing market prices were significantly lower.” Id.
The ITC found that over half of domestic purchasers reported supply problems since March 2002. Id. The ITC noted that 80 out of 91 purchasers responded that they had received notices of price increases since March 2002. Id. The ITC found that the closure of one domestic production facility in December 2001 “temporarily contributed” to the rising domestic prices, along with the “withdrawal of subject imports from the market following the Section 201 action.” Id. The ITC noted that in May 2002, production at that facility resumed, while domestic prices continued to increase and subject imports continued to withdraw from the market. Id. at 36. The ITC mentioned that no lost sales or lost revenue allegations were made by the domestic producers in the preliminary phases of the investigation, and only one of the lost revenue allegations made in the final phase of the investigations was confirmed. Id.
The ITC found that although subject imports that entered earlier in the POI “continue to have an effect on the industry’s contract prices negotiated before the Section 201 relief was effective, subject imports currently entering the market are not suppressing current domestic prices to a significant degree.” Id. Based on the “current volume of subject imports and the increase in domestic prices in 2002,” the ITC concluded that the “subject imports are not adversely affecting domestic prices to a significant degree.” Id.
Parties’ Contentions
A. Nucor’s Contentions.
Nucor contends that the evidence in the record demonstrates that the subject imports had an adverse effect on domestic prices. (Nucor’s Br. at 29.) First, Nucor contends that the ITC failed to make the required statutory findings regarding underselling and that substantial evidence in the record shows that underselling was significant. (Id.) Second, Nucor asserts that the ITC ignored evidence that the subject imports continued to suppress and depress domestic prices throughout the POI and incorrectly attributed the improvements in domestic spot prices to the imposition of the Section 201 relief. (Id.)
Second, Nucor contends that the subject imports continued to suppress and depress domestic prices throughout the POI. (Id. at 33.) Nucor asserts that the ITC’s determination to the contrary is not supported by substantial evidence in the record. (Id.) Nucor contends that the ITC overstated the recovery of domestic prices in 2002, noting that in the second quarter of 2002, domestic prices were still lower than at the beginning of the POI. (Id. at 34.) Nucor contends that any recovery in the domestic market is the result of the domestic steel industry’s deliberate choice to lower prices in order to remain competitive with the undersold imports. (Id. at 32, 34-35.) Nucor contends that the fact that domestic spot prices increased at the very end of the POI “do[es] not negate the possibility that ... underselling caused price suppression or depression.” (Id. at 35.) Additionally, Nucor contends that the ITC failed to adequately examine the effect that the AD/CVD investigations had
B. Domestic Integrated Producers’ Contentions.
Domestic Integrated Producers contend that the ITC’s findings that the subject imports were not adversely affecting prices of the domestic like product is not supported by substantial evidence. (Domestic Integrated Producers’ Br. at 52.) According to Domestic Integrated Producers, record evidence contradicts the ITC’s finding and demonstrates that the subject imports were adversely affecting domestic prices. (Id.) Specifically, Domestic Integrated Producers contend that: (1) underselling was significant throughout the POI; (2) subject imports continued to have an adverse effect on domestic contract prices, even after the imposition of the Section 201 relief; (3) spot price recovery in the domestic market did not coincide with the Section 201 relief. (Id. at 52, 54.)
First, Domestic Integrated Producers assert that the ITC’s conclusion that underselling during the POI was not significant is unsupported by substantial evidence. (Id. at 52.) Domestic Integrated Producers note that the ITC’s quarterly pricing comparisons indicated underselling in 296 out of 455 instances. (Id. at 53 (citing Cold-Rolled I at 34).) Domestic Integrated Producers assert that underselling “continued unabated” throughout the POI. (Id. at 55.) Domestic Integrated Producers argue that the ITC should have considered the underselling data assessed by volume because, when assessed by volume, the significance of the underselling is more apparent. (Id. at 53.) Domestic Integrated Producers contend that when assessed by volume, the evidence shows that “77.7[%] of the volume of subject imports represented by the[ ] 2 products undersold the domestic like products over the POI.” (Id.) Domestic Integrated Producers contend that the ITC unreasonably relied on data representing the “simple average margin of underselling.” (Id. at 56.) According to Domestic Integrated Producers, using the simple average margin “may greatly understate the extent of underselling where the volumes involved in the comparisons vary significantly.” (Id. at 57.) Domestic Integrated Producers contend that this is the case here because, when measured by volume, the amount of underselling was significant throughout the POI and was more significant in the first half 2002 “than in any other comparable period save calendar year 1999.” (Id. at 57-58.) Domestic Integrated Producers contend that the ITC failed to address Domestic Integrated Producers’ argument that underselling was significant when assessed by volume during the administrative process. (Id. at 58.) Domestic Integrated Producers assert that the ITC’s failure to address the data in terms of volume is contrary to the ITC’s obligations under § 1677f(i)(3)(B) “to consider and ad
Further, Domestic Integrated Producers contend that the ITC unreasonably compared margins of underselling in 2002 with those in 1999 and provided no explanation why it did not compare underselling in 2002 with underselling in 2001 or 2000. (Id. at 59.) Domestic Integrated Producers assert that underselling, in fact, occurred in the first half of 2002 at approximately the same rate as in 2001 and at a greater rate than in 2000 or 1999. (Id. at 59-60 (citing Final Staff Report at V-9, Tables V-3, V-12, & V-4, Cold-Rolled I at 76-77 (dissent of Comm’nr Bragg)).) Domestic Integrated Producers acknowledge that the ITC “may permissibly focus its analysis on a specific time frame within the POI,” but argue that the ITC cannot ignore the relevant underselling data for the rest of the POI. (Id. at 60.)
Additionally, Domestic Integrated Producers contend that the ITC did not address evidence submitted by the domestic industry explaining why underselling decreased from 1999 to the first half of 2002. (Id.) Domestic Integrated Producers contend that at the hearing and in its submissions, the domestic industry presented compelling evidence that showed that underselling decreased later in the POI because the domestic producers showed price leadership in “act[ing] aggressively to meet import prices to prevent the loss of volume.” (Id. at 61.) Domestic Integrated Producers assert that the ITC’s failure to address this argument and the supporting evidence is reversible error under § 1677f(i)(3)(B). (Id. at 62 (citing ALTX,
Second, Domestic Integrated Producers assert that subject imports continued to have adverse effects on contract prices in 2002. (Id.) Domestic Integrated Producers contend that the ITC acknowledged the fact that a majority of sales were made under contracts with locked-in lower prices, but then disregarded this evidence by focusing only on current imports. (Id.)
Third, Domestic Integrated Producers challenge the ITC’s finding that the recovery of domestic spot prices was a result of the Section 201 relief. (Id. at 64.) They contend that the ITC incorrectly attributed the increase in spot prices in the second quarter of 2002 to the imposition of Section 201 remedies. (Id. at 65.) To support their contention, Domestic Integrated Producers assert that spot prices began to increase in January 2002, before any effects of the Section 201 relief would have been felt in the market. (Id.) Domestic Integrated Producers contend that the ITC failed to address the spot price increase in January 2002, and focused only on the second quarter of 2002, so that the data would support the ITC’s Section 201 claims. (Id. at 65-66.) Domestic Integrated Producers contend that the ITC’s spot price comparisons for cold-rolled, hot-rolled, and coated steel do not support the ITC’s conclusion that the spot prices increased in response to the Section 201 relief because similarities between these prices were exhibited “long before the Section 201 tariffs were imposed,” and “almost all parties have acknowledged [that] prices of these three products tend to move together.” (Id. at 67-68.) Finally, Domestic Integrated Producers contend that the ITC also failed to address a monthly spot price report submitted during the administrative process that detailed spot prices during the entire POI. (Id. at 66.)
Domestic Integrated Producers conclude that the ITC’s determination is contradicted by record evidence that demonstrates that domestic prices were significantly adversely affected during the entire POI including the first half of 2002. (Id. at 69.)
Defendant contends that the ITC’s finding that subject imports did not have a significant adverse effect on domestic prices is supported by substantial evidence. (Def.’s Br. at 69.) First, regarding underselling, Defendant contends that the ITC observed that most of the underselling occurred earlier in the POI, and that after the imposition of the Section 201 tariffs, “there was no underselling at all.” (Id. at 69-70 (citing Coldr-Rolled I at 46 n. 207, Final Staff Report at Tables V-3, V-4 & V-6).) Defendant also contends that the ITC properly found that in the first half of 2002, underselling had significantly declined: specifically, “on sales to service centers, the average margin of underselling was 9.1 percent per ton in 1999 compared with overselling of 4.0 percent in 2002; average underselling for sales to end users was 24.8 percent in 1999 compared with 1.5 percent in 2002.” (Id. at 70 (citing Cold-Rolled I at 46 n. 207).)
Defendant contends that Nucor’s assertion that the ITC failed to make a finding that underselling was not significant is without merit. (Id.) Defendant contends that the “path of the [ITC] may reasonably be discerned” from the ITC’s discussion of the 2002 data, the reduction of underselling margins, and the absence of underselling in the second quarter of 2002. (Id. at 70 (quoting Cerámica Regiomontana,
Defendant rebuts Domestic Integrated Producers’ contentions that the ITC should have given more weight to the evidence of underselling assessed by volume by stating that “it is the [ITC’s] role, not the parties’, to determine the weight to be accorded record evidence.” (Id. at 71.) Specifically, Defendant asserts that the ITC is not obligated to discuss the evidence submitted by Domestic Integrated Producers during the investigation regarding measuring underselling on a volume basis. (Id.) Rather, the ITC must only “discuss issues material to its determination so that the path of the agency may reasonably be discerned.” (Id. (citations omitted).) Defendant contends that the Domestic Integrated Producers are, in effect, claiming that the underselling data must be considered on a volume basis. (Id. at 71-72.) Defendant contends that the ITC has “broad discretion in analyzing and assessing the significance of the evidence on price undercutting.” (Id. at 72 (citing U.S. Steel Group,
Defendant acknowledges that the ITC compared underselling data for the first half of 2002 with data from 1999, but notes that the ITC considered underselling over the entire POI. (Id. at 73.) Defendant contends that the ITC correctly focused on the “most relevant pricing data (after the imposition of the President’s 30 percent Section 201 tariffs)” to support its conclusion that the subject imports were not suppressing current domestic prices. (Id. at 72.) Defendant reiterates that the ITC has “substantial discretion to weigh the evidence presented,” and considering the circumstances of the domestic market after the imposition of the Section 201 remedy, Defendant contends that the ITC reasonably attached significance to the most current data. (Id. at 73-74.)
Contrary to Plaintiffs’ contentions, Defendant asserts that the ITC was not obligated under 19 U.S.C. § 1677f(i)(3)(B) to respond to Plaintiffs’ assertions that price leadership was the reason that there was no underselling at the end of the POI. (Id. at 74.) Defendant notes that the ITC acknowledged that a majority of purchasers identified domestic mills as the price leaders in the domestic market. (Id. (cit
Defendant contends that Domestic Integrated Producers are seeking de novo review in asserting that the ITC did not address a monthly spot price report submitted during the administrative process. (Id. at 76 (citing Domestic Integrated Producers’ Br. at 65).) Defendant emphasizes that the ITC “is presumed to have considered all information in the record” and is not required to reference every exhibit placed on the record by the parties. (Id. at 76-77.) Defendant contends that Domestic Integrated Producers improperly argue that the ITC should have accorded more weight to this particular evidence of monthly spot prices. (Id. at 77.) Defendant contends that this argument highlights that Plaintiffs are seeking de novo review of the ITC’s determination instead of the proper review under the substantial evidence standard. (Id.) Defendant contends that even if the substantial evidence standard of review allowed the Court to re-weigh the evidence presented to the ITC, this document does not advance Plaintiffs’ claims. (Id.) Defendant contends that although Plaintiffs seek to use this document to show the effect of the filing of the petitions on domestic prices, in fact, the information shows that a spot price in January 2002, 102-days after the petitions were filed, was the same as a spot price in September 2001, the month that the petitions were filed. (Id. (citing Domestic Integrated Producers Prehr’g Br. Ex. 6 (P.R. 130) (C.R.251)).)
Regarding the spot price increase in January 2002, Defendant asserts that the ITC attributed the spot price increase to a domestic plant closure and to the Section 201 proceedings. (Id. at 78 (citing Cold-Rolled I at 46-47).) Further, Defendant contends that by January 2002, the market would have also been affected by the Section 201 investigations that were initiated September 2001, as well as by the AD/ CVD petitions. (Id.)
Defendant argues that the ITC recognized that many contracts in 2002 continued to be honored at lower 2001 prices, but then found that overall, subject imports were not adversely affecting domestic prices. (Id. at 75 (citing Cold-Rolled I at 46-47).) Defendant contends that the ITC “found that current imports, to which the earlier contract prices attached, were not causing material injury.” (Id. at 88.) Defendant asserts that even though “Plaintiffs point to evidence they contend would support a different conclusion,” the ITC retains the discretion to reasonably interpret and weigh the evidence on the record. (Id. at 75 (citing Coalition for the Preservation of Am. Brake Drum & Rotor Aftermarket Mfrs. v. United States,
Lastly, Defendant contends that the ITC reasonably declined to base its price effects conclusions on the econometric analysis submitted by Nucor that allegedly demonstrated the effect of the AD/CVD investigations on domestic prices, over that of the Section 201 proceedings. (Id. at 78-79.) Defendant contends that Plaintiffs once again ignore the proper standard of review, and ask this Court to conduct de novo review of the record evidence and accord greater weight to the submitted analysis. (Id.) As argued earlier regarding volume, Defendant contends that the ITC considered the submitted econometric analysis and did not find the analysis probative. (Id.)
Defendant concludes that the ITC’s finding that the subject imports did not have significant adverse price effects on the do
D. Defendant-Intervenors’ Contentions.
Defendant-Intervenors contend that the ITC’s finding that the subject imports were not adversely affecting the price of the domestic like product is supported by substantial evidence. (Def.-Intvs.’ Br. at 48.) First, regarding underselling, Defendant — Intervenors assert that the record demonstrates that underselling by imports was not significant during the POI. (Id.) Defendant-Intervenors contend that the “mere existence of underselling” does not require a finding that the subject imports have adversely affected domestic prices. (Id. at 49.) Defendant-Intervenors contend that there must be a clear causal link between the underselling and any adverse price effects. (Id. at 49-50.) Defendant-Intervenors contend that the ITC found that by the end of the POI, domestic prices were increasing. (Id. at 50 (citing Cold-Rolled I at 34-35).) Thus, Defendant— Intervenors assert that “underselling could not be a recognizable cause of injury because it did not cause a downward movement in prices.” (Id.)
Defendant-Intervenors contend that, contrary to Plaintiffs’ assertions that underselling should be assessed by volume, the methodology that the ITC used to measure underselling was reasonable and in line with its established practice. (Id. at 51.) D efen danC-Interven ors contend that Plaintiffs incorrectly assert that the ITC’s determination is without support because the ITC failed to “exhaustively address and adopt [Plaintiffs’] methodology to calculate underselling by volume.” (Id. (citing Domestic Integrated Producers’ Br. at 56-58; Nucor’s Br. at 31-32).) Defendant — Intervenors contend that the ITC is not obligated to measure underselling by volume and has been given broad discretion to analyze underselling data and to determine which methodology to apply. (Id. at 51-52.) Defendant-Intervenors contend that no matter which methodology is employed, underselling data from the most recent period supports the ITC’s finding that subject imports were “not suppressing current domestic prices.” (Id. at 53 (quoting Coldr-Rolled I at 36).)
Next, Defendant-Intervenors address Domestic Integrated Producers’ contention regarding the ITC’s comparison of underselling data from 2002 with data from 1999. (Id.) Defendant-Intervenors contend that, considering the overwhelming impact of the Section 201 proceedings on the domestic steel industry, the ITC appropriately compared the most recent time period, 2002, with the time period before the initiation of the Section 201 proceedings, 1999. (Id.)
Further, DefendantIntervenors contend that the ITC is not required to address Plaintiffs’ “anecdotal explanations” why underselling decreased. (Id. at 54.) Regardless of Plaintiffs’ assertions that underselling decreased because of the domestic industry’s efforts to match import prices, Defendant-Intervenors contend that the ITC is not required to determine why prices decreased. (Id. at 54-55.)
Regarding Plaintiffs’ contentions about the alleged effects of earlier subject imports on domestic contract prices, Defen-danWfrtervenors assert that even with this evidence, the record strongly supports the ITC’s determination that imports were not injurious. (Id. at 55-56.) Defendant-Intervenors note that the ITC considered the fact that many contracts would be honored at 2001 prices, but still found that subject imports were not adversely affecting domestic prices based on the minimal level of subject imports and the increase in domestic prices at the end of the POI. (Id. at 56-57.)
Analysis
A. The ITC’s Determination that Subject Imports Were Not Adversely Affecting Domestic Prices to a Significant Degree Is Supported By Substantial Evidence.
This Court holds that the ITC’s determination that the subject import were not adversely affecting domestic prices to a significant degree is supported by substantial evidence. In evaluating the effect of subject imports on domestic cold-rolled steel prices, the ITC must consider whether there has been significant price underselling and whether the subject imports otherwise suppress or depress prices to a significant degree. 19 U.S.C. § 1677(7)(C)(ii)(I-II).
1. The ITC’s Underselling Analysis Is Supported by Substantial Evidence.
First, this Court does not find persuasive Nucor’s contention that the ITC failed to make a statutorily required finding regarding the significance of underselling. (See Nucor’s Br. at 30.) Although the ITC did not expressly state that it found underselling to be insignificant, “the path of the agency may be reasonably discerned.” Ceramica Regiomontana,
Second, this Court finds that the ITC’s determination that underselling was not significant is supported by substantial evidence. “[T]he ITC [has] broad discretion in analyzing and assessing the significance of the evidence on price undercutting.” Copperweld Corp. v. United States,
The ITC “exercise[s] its discretion to select a particular methodology and as long as substantial evidence supports that choice, the Court reviewing such methodology will sustain the [agency’s] decision.” Mitsubishi Elec. Corp. v. United States,
This Court is not persuaded by Plaintiffs’ contentions that the ITC’s determination is unsupported by substantial evidence because the ITC failed to consider certain evidence presented during the administrative hearing addressing why underselling declined during the POI. Specifically, Plaintiffs contend that the ITC failed to consider testimony offered at the hearing that explained that the margins of underselling declined because the domestic industry made an effort to match import prices. {See Domestic Integrated Producers’ Br. at 61-62 (citing Hr’g Tr. at 111— 112, 61-62, 134, 109-110 (P.R. 157)).) This Court has held that “[t]he [ITC] is presumed to have considered all of the evidence in the record[,] ... especially ... where the facts allegedly ignored were presented to the [ITC] at a[n] open hearing.” Nat’l Ass’n of Mirror Mfrs. v. United States,
2. The ITC’s Finding that the Subject Imports did not Otherwise Suppress or Depress Domestic Prices to a Significant Degree is Supported by Substantial Evidence.
This Court holds that the ITC’s determination that the subject imports did not suppress or depress domestic prices is supported by substantial evidence. First, the Court finds that the ITC considered price data from the entire POI and reasonably focused on price data from 2002. See Taiwan Semiconductor Indus. Ass’n,
Second, the Court finds that the ITC was not required to specifically address a certain monthly spot price report submitted by Domestic Integrated Producers. As this Court stated above, the ITC is not required to reference every exhibit placed on the record. “Further, the fact that the ITC chose not to focus on certain data in its main report does not indicate that the ITC failed to consider that information as ‘there is no statutory requirement that the [ITC] respond to each piece of evidence presented by the parties.’ Rather, such a finding merely indicates the ITC decided not to focus on such data in its main report.” Ranchers-Cattlemen Action Legal Found.,
Third, the Court finds that the ITC’s comparison of spot prices for cold-rolled, hot-rolled, and coated steel imports supports the ITC’s finding that the subject imports did not suppress or depress domestic prices. The ITC’s conclusion that subject imports did not suppress or depress domestic prices is supported by the fact that spot prices for all three products “exhibited similar trends and similar dramatic increases” after the Section 201 pro
Next, the Court is not persuaded by Plaintiffs’ contention that domestic spot price recovery should be attributed to the pending AD/CVD investigations and not to the Section 201 relief. Although Plaintiffs again cite to the econometric analysis provided by Nucor in support of this contention, as detailed in the Court’s analysis of the ITC’s volume finding, the Court finds that the ITC fully examined this econometric analysis and articulated a satisfactory explanation for giving it little weight. See supra Part II.ANALYSisA.l.e, pp. 68-69.
Finally, the Court finds that the ITC adequately considered the effect that the earlier-negotiated contracts had on domestic prices in 2002 and reasonably found that the these effects were insufficient to find that subject imports adversely affected domestic prices to a significant degree. Specifically, the ITC acknowledged that domestic prices in 2002 were not the highest of the POI and “attribute[d] this to the fact that although some contracts have been renegotiated as a result of the sharp increase in spot prices, many contracts continue to be honored at the price levels negotiated at the end of 2001 when prevailing market prices were significantly lower.” Coldr-Rolled I at 35 (citing Hr’g Tr. at 64, 79-80, 115, 147 (P.R. 157)). The ITC balanced the evidence of the contracts’ effect on domestic prices against the other evidence of spot price recovery and the dramatic decline in subject import volumes during 2002. Cold-Rolled I at 36. The ITC concluded that although subject imports that entered earlier in the POI “continue to have an effect on the industry’s contract prices negotiated before the Section 201 relief was effective, subject imports currently entering the market are not suppressing current domestic prices to a significant degree.” Id. Although Plaintiffs may have wanted the ITC to place greater weight on the contract prices than it did, it cannot be said that the ITC overlooked the possibility that the earlier subject imports continued to have an effect on domestic contract prices. It was reasonable for the ITC to conclude that subject imports were not suppressing or depressing domestic prices, even though many contracts continued to be honored at lower prices, based on the record evidence that demonstrates the recovery of spot prices in 2002, the spot prices’ effect on contracts, and the overall decline of subject imports in the most recent period examined.
This Court finds that there was substantial evidence to support the ITC’s conclusion that subject imports were not adversely affecting domestic prices.
IV. The Subject Imports’ Impact on the Domestic Industry.
ITC’s Determination
The ITC noted that the final component of the ITC’s material injury determination
The ITC evaluated the domestic market conditions during the POI. Id. at 36-39. The ITC examined U.S. consumption, domestic market share, domestic output indicators (e.g., domestic production, and capacity utilization), industry sales revenues, operating losses, employment indicators (e.g., productivity, hours worked, wages paid), and capital expenditures. Id. at 37-39. The ITC concluded that the condition of the domestic industry began to improve after the imposition of Section 201 relief. Id. at 39. After examining official Commerce import statistics and questionnaire responses, the ITC found that most of the domestic industry indicators followed this general pattern: varying results from 1999 to 2000; overall decline from 2000 to 2001; and dramatic overall recovery in the first half of 2002, as compared to the first half of2001. Mat37-39.
Specifically, the ITC observed that apparent U.S. consumption of cold-rolled steel products in the total market declined to 35.6 million short tons in 2001 from 39.6 million in 2000 and 39.8 million in 1999, and then increased to 17.2 million short tons in the first half of 2002 as compared to 16 million in the first half of 2001. Id. at 37. However, in the merchant market, apparent U.S. consumption declined to 6.92 million short tons in the first half of 2002 from 6.94 million in the first half of 2001. Id.
The ITC noted that the domestic share of the merchant market decreased in 2001 to 81.7% from 85.9% in 2000 and 82.9% in 1999, but increased in the first half of 2002 to 89.0% compared to 81.2% in the first half of 2001. Id. at 37-38. The domestic share of the total market decreased in 2001 to 91.9% from 93.6% in 2000 and 92.2% in 1999, but then increased in the first half of 2002 to 95.6% compared to 91.9% in the first half of 2001. Id.
Domestic production declined from a high of 37.4 million short tons in 1999 to 33.1 million in 2001, but then increased in the first half of 2002 to 16.8 million short tons as compared to 14.8 million in the first half of 2001. Id. at 38. Capacity utilization steadily decreased from 85.8% in 1999 to 83.1% in 2000 and 75.1% in 2001, but increased in the second quarter of 2002 to 89.9% compared to 73.5% in the second quarter of 2001. Id.
The ITC found that from 2000 to 2001, the domestic industry “incurred heavy financial losses” attributable to declining sales values, a drop in prices after a dramatic decline in demand, and “low-priced subject imports gaining] U.S. market share.” Id. at 37. However, the ITC observed a pattern of recovery in the first half of 2002: the domestic industry had operating losses of $153 million in 1999 and $2 billion in 2001, but only incurred losses of $688 million in the first half of 2002 as compared to $926 million in the first half of 2001. Id. at 38. When comparing operating losses as a percentage of net sales, the ITC noted recovery in 2002: 1.2% in 1999, 1.7% in 2000, and 18.8% in 2001, declining to 11.1% in the first half of 2002 compared to 16.8% in the first half of 2001. Id. at 38 & n. 239.
The ITC’s investigation of worker statistics provided mixed results. Id. at 39. For instance, the number of production and related workers and hours worked declined, yet wages paid increased. Id. The ITC noted that over the entire POI productivity also increased each year. Id. Finally, the ITC found that questionnaire responses from domestic producers indi
The ITC found that the “present condition of the domestic industry” was not attributable “in any material respect to the current subject imports.” Id. Thus, the ITC concluded that it “d[id] not find that any material injury currently being experienced by the domestic industry is by reason of the subject imports.” Id. at 39.
Parties’ Contentions
A. Nucor’s Contentions.
First, Nucor contends that the ITC improperly based its impact finding on its erroneous volume analysis, and because the ITC’s volume analysis was flawed, as argued earlier, the ITC’s impact finding based on that analysis is also unsupported by substantial evidence. (Nucor’s Br. at 36-37.) Second, Nucor contends that the ITC improperly based its impact finding on the assertion that the Section 201 remedy produced recovery in domestic industry, and that assertion is flawed because the ITC dismissed the econometric analysis provided by petitioners and the effect that the AD/CVD investigations had on domestic prices. (Id. at 37.) Third, Nucor contends that the ITC overlooked record evidence that demonstrated the impact that subject imports entered earlier in the POI continued to have on the domestic market. (Id. at 38.) Specifically, Nucor points to the ITC’s statement that “subject imports which entered the market earlier in the [POI] continue to have an effect on the industry’s contract prices negotiated before the Section 201 relief was effective” and the fact that the ITC acknowledged that 55% of the domestic industry’s commercial sales were by annual contract. (Id. (citing Cold-Rolled I at 36).) Nucor asserts that these earlier-negotiated contracts had a significant impact on the do-fnestic industry. (Id.)
Additionally, Nucor contends that the ITC ignored evidence of a “natural experiment” that was the “clearest possible proof’ that the subject imports impacted the domestic industry. (Id. at 41.) Nucor notes that in 1999, AD/CVD investigations were initiated involving ten countries which are also subject to these investigations. (Id.) Nucor asserts that after the ITC made a negative injury determination in March 2000, the domestic industry suffered as imports increased and domestic prices declined. (Id. at 42.) Nucor contends that the ITC dismissed Nucor’s arguments regarding this earlier 1999 investigation stating in a footnote that the “fluctuations and uncertainty that occur in the market” were not proof of material injury. (Id. at 43 (citing Cold-Rolled I at 37 n. 223).) Nucor asserts that the ITC misunderstood what the 1999 investigation demonstrated: “when cold-rolled imports left the market, the domestic industry’s sales increased and its financial performance improved ... when imports re-entered the U.S. market in large quantities, prices fell and the U.S. industry suffered mounting financial harm.” (Id. at 44.)
Finally, Nucor reemphasizes the financial losses of the domestic steel industry during the POI as further evidence of the subject imports’ adverse impact on the domestic industry. (Id.) Nucor contends that even in the first half of 2002, when alleged improvements in the industry occurred, the domestic producers operating losses were still $688 million. (Id. at 46 (citing Cold-Rolled I at 38).) Nucor concedes that this loss is less than in 2001, but asserts that “a loss of this scale constitutes injury by any meaningful measure.” (Id.) Nucor contends that in the past, the ITC has found injury even when the domestic industry appeared to improve in the later
B. Domestic Integrated Producers’ Contentions.
Domestic Integrated Producers contend that the ITC’s impact finding is unsupported by substantial evidence because the ITC disregarded record evidence of adverse impact during the majority of the POI and instead focused only on data from the first half of 2002. (Domestic Integrated Producers’ Br. at 70.) Domestic Integrated Producers assert that the domestic industry continued to feel the adverse impact of the subject imports even in the first half of 2002. (Id.) Domestic Integrated Producers contend that the domestic industry continued to suffer severe financial losses: $688 million in operating losses in the first half of 2002, “four times the operating loss posted in all of calendar year 1999.” (Id.) Domestic Integrated Producers also contend that because a majority of sales are made through contracts, and most contracts in 2002 continued to be honored at low 2001 prices, the domestic industry continued to be adversely impacted by the subject imports in 2002. (Id. at 71.) Further, Domestic Integrated Producers contend that the ITC’s impact findings are “completely dependent upon its flawed volume and price analysis,” and because these underlying analyses are flawed, the ITC’s impact finding is unsupported by substantial evidence. (Id. at 72.)
C. Defendant’s Contentions.
Defendant contends that the ITC’s impact finding was supported by substantial evidence. (Def.’s Br. at 81.) Defendant contends that Plaintiffs are seeking de novo review of the evidence fully presented and examined by the ITC in its final determinations. (Id. at 83.) Defendant asserts that contrary to the statutory mandate, Plaintiffs’ contentions regarding impact focus only on one economic factor: the domestic industry’s operating losses. (Id. (citing Domestic Integrated Producers’ Br. at 69-71, Nucor’s Br. at 44-46).) Defendant contends that the statute requires the ITC to include a consideration of “all relevant economic factors” in its impact analysis and not just rely on one single factor as the Plaintiffs have. (Id. (quoting 19 U.S.C. § 1677(7)(C)(iii)).) Defendant contends that examining profitability as one of many factors to consider “underscore[s] the legislative intent that absence of profits shall not act as a proxy for injury.” (Id. at 83-84 (quoting Am. Spring Wire Corp. v. United States,
Defendant contends that “Nucor again ignores that [ITC] determinations are sui generis” when it asks this Court to evaluate this case in light of prior ITC determinations that found injury when the domestic industry showed improvement at the end of the period of investigation. (Id. at 85-86.) Lastly, Defendant contends that the ITC’s findings that the volume of subject imports was not significant and that subject imports did not adversely affect domestic prices were supported by substantial evidence; thus, the ITC “could not find a material adverse impact or material injury” without significant volume or price effects. (Id. at 86-87.)
D. Defendant-Intervenors’ Contentions.
Defendant-Intervenors contend that the ITC’s determination regarding the impact of the subject imports on the domestic cold-rolled steel industry is supported by substantial evidence. (Def.-Intvs.’ Br. at 64.) Defendant-Intervenors contend that the ITC found that the Section 201 proceedings “severed any causal nexus between subject imports and the [domestic industry’s] operating losses.” (Id.) Defen-danWntervenors contend that Plaintiffs “conveniently ignore” the ITC’s discussion of other industry factors and instead focus only on the industry’s operating income. (Id. at 65.) Defendant-Intervenors contend that the ITC followed the statute’s directive to consider “all relevant economic factors” in determining that the subject imports were not adversely impacting the domestic market. (Id. (quoting 19 U.S.C. § 1677(7)(C)(iii)).) Defendant-Intervenors contend that the record evidence supports the ITC’s -conclusion, noting that the following performance indicators all showed improvement in 2002: the domestic producers’ share of the merchant market; domestic production; domestic shipments; capacity utilization; net sales; productivity; and capital expenditures. (Id. at 66-67 (citing Cold-Rolled I at 37-39).) Defen-danb-Intervenors contend that these improvements demonstrate the domestic industry’s recovery in the latter part of the POI. (Id. at 68.) Defendant-Intervenors conclude that the ITC’s determination that the domestic industry was not adversely impacted by the subject imports is supported by substantial evidence. (Id. at 69.)
Analysis
A. The ITC’s Finding that the Subject Imports Did Not Adversely Impact the Domestic Industry is Supported by Substantial Evidence.
This Court holds that the ITC’s impact finding is supported by substantial evidence. The final component of the ITC’s material injury determination is an examination of the subject imports’ impact on the domestic industry. 19 U.S.C. § 1677(7)(B)(i)(III). In this analysis, the ITC must consider “all relevant economic factors which have a bearing on the state of the industry in the United States.” 19 U.S.C. § 1677(7)(C)(iii). Here, the ITC evaluated various market conditions during the POI and concluded that “the present condition of the domestic industry” was not “attributable in any material respect to the current subject imports.” Id. at 39.
This Court has already discussed and dismissed Plaintiffs’ contentions regarding the ITC’s focus on current data, the ITC’s finding that the Section 201 remedy was the overwhelming factor in the decline of subject imports, the ITC’s evaluation of the AD/CVD investigations’ effect on post-
-First, the Court finds that the ITC adequately addressed Nucor’s argument that the 1999 AD/CVD investigations were a “natural experiment” in its final determination and reasonably concluded that the argument was not persuasive. The ITC stated that it had “considered how market conditions, including the previous and pending Title VII cases and the more recent Section 201 relief, affected trends in import volumes and prices.” Cold-Rolled I at 37 n. 223 (emphasis added). The ITC then expressly rejected Nucor’s “natural experiment” theory by stating that pending AD/CVD investigations “inject some uncertainty into the market,” but that these fluctuations in the market “do not in and of themselves prove that, prior to the filing of [the AD/CVD petition], imports are causing material injury.” Id. The Court will not disturb the ITC’s findings where, as here, the ITC considered conflicting evidence, yet reasonably determined that other factors were “of greater moment.” See Makita Corp. v. United States,
Next, Plaintiffs highlight the operating losses suffered by the domestic industry throughout the POI, but do not discuss the other “relevant economic factors” that the ITC considered in making its negative impact finding. See 19 U.S.C. § 1677(7)(C)(iii). Plaintiffs correctly note that the domestic industry continued to suffer severe operating losses even in the first half of 2002. See Coldr-Rolled I at 38. However, the ITC considered this operating loss and balanced it against other record evidence that showed improvements in the domestic market. Id. at 37-39. For example, the ITC found that the total market consumption, the domestic share of the merchant market and total market, domestic production, capacity utilization, and capital expenditures all substantially increased in 2002 compared to 2001 data. Id. Additionally, although the domestic industry continued to suffer operating losses, the losses were less in 2002 than in 2001. Id. at 38. This Court finds that the ITC based its negative impact finding on a consideration of the various economic factors that showed significant improvement in the most recent period examined. Coupled with the ITC’s findings regarding the subject imports’ volume and price effects, this Court holds that the ITC’s impact finding is supported by substantial evidence.
V. Cumulation of Subject Imports from Australia.
ITC’s Determination
In making its final determination, the ITC recognized that under § 1677(7)(G)(i), it must cumulatively assess the subject imports from all countries as to which petitions were filed on the same day, if the imports compete with each other and with the domestic like product in the domestic market. Cold-Rolled I at 15 (citing 19 U.S.C. § 1677(7)(G)(i)). The ITC identified the four factors generally considered when determining cumulation: “(1) the degree of fungibility between the subject imports from different countries and between imports and the domestic like product, including consideration of specific customer requirements and other quality related questions; (2) the presence of sale or offers to sell in the same geographic markets of subject imports from different countries and the domestic like product; (3) the
First, the ITC found that there was a “reasonable overlap of competition among the subject imports and with the domestic like product for all subject imports, except with respect to Australia.” Id. The ITC did not cumulate the subject imports from Australia in its material injury analysis. Id. The ITC found that “[v]irtually all subject imports from Australia are full-hard steel ... [and] enter the United States through the West region.” Id. at 16 (citing Final Staff Report at Table IV-5; Posthr’g Br. of BHP Steel, LTD., New Zealand Steel, Ltd., and BHP Steel Americas, LLC at 1 (P.R. 180) (C.R.289)). The ITC further noted that all of the Australian subject imports were “sold entirely on the open market to two end user customers located in the West region.” Id. The ITC found that the domestic supply of full-hard steel in the West region is limited and that the overlap between Australian subject imports, other subject imports, and the domestic like product is very limited. Id. The ITC also noted that domestic production of full-hard steel was limited in the West region during the POI because of “the significant reduction of production at UPI, a West Coast producers of the full-hard product, following a fire at UPI’s facilities.” Id. at 16 n. 84 (citing Final Staff Report at VI-3 n. 4). After reviewing 2001 data reflecting the percentage of domestic commercial full-hard steel shipments in the West region, the ITC concluded that “the record does not establish a reasonable overlap of competition between the domestic like product and the subject merchandise from Australia.” Id.
Second, the ITC found that there was no reasonable overlap of competition between Australian imports and imports from other subject countries. Id. at 17 n. 85. The ITC stated that “there is a very limited degree of fungibility between cold-rolled steel from Australia and cold-rolled steel from the other subject countries.” Id. The ITC found that “no other country has the same degree of concentration” of full-hard steel imports. Id. (citing Final Staff Report at Table IV-7C; Final Staff Report App. C, at Table C-8). The ITC also found limited geographic market overlap: “imports from Australia were concentrated geographically in the West region (99.7 percent), and virtually absent from the geographic markets of the East, Gulf, and Great Lakes through which more than 80 percent of subject imports were entered.” Id. (citing Final Staff Report at Table IV-5). The ITC also found that “[o]nly one small-volume supplier, New Zealand, had a comparable level of regional concentration on the West Coast.” Id. Finally, the ITC found that “100 percent of imports from Australia were sold directly to end users,” whereas only two other countries had a similar concentration in sales to end users. Id. The ITC conceded that although Australian imports were “present throughout the period examined,” the other factors considered did not indicate that cumulation was appropriate. Id.
A. Nucor’s Contentions.
Nucor does not address this issue in its briefs.
B. Domestic Integrated Producers’ Contentions.
Domestic Integrated Producers contend that the ITC’s determination not to cumu-late imports from Australia is unsupported by substantial evidence. (Domestic Integrated Producers’ Br. at 73.) Specifically, Domestic Integrated Producers challenge two of the ITC’s findings: (1) that there was no reasonable overlap of competition between the imports from Australia and the domestic like product; and (2) that there was no reasonable overlap of competition between the imports from Australia and the imports from all other subject countries. (Id.)
First, regarding overlap with the domestic like product, Domestic Integrated Producers challenge the ITC’s factual findings as to the domestic industry’s shipments of full-hard steel to the West region. (Id. at 74-75.) Domestic Integrated Producers contend that the ITC in effect created a “low volume exception” to the cumulation statute. (Id. at 77.) Domestic Integrated Producers assert that all other statutory requirements for cumulation were present, however, the ITC did not find a reasonable overlap of competition because “the domestic industry did not ship large enough volume to [the West].” (Id.) Domestic Integrated Producers contend that the ITC has previously articulated “an established agency practice” of finding a reasonable overlap of competition even if there are low volume levels. (Id. at 78.) To support their proposition, Domestic Integrated Producers cite a prior ITC determination wherein the ITC found a reasonable overlap of competition between a low volume of imports from a certain country and the domestic like product even though there was a larger volume of the domestic like product. (Id. (citing HoC-Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine, Invs. Nos. 701-TA-404-408 (Prelim.), 731-TA-898-908 (Prelim.), USITC Pub. 3381 at 11 n. 63 (Jan.2001)).) Domestic Integrated Producers contend that the ITC cannot create a “low volume exception” for the domestic like product when there is no “low volume exception” for imports. (Id.)
Domestic Integrated Producers also note that the ITC failed to address evidence in the record that showed that the domestic industry was “actively solicit[ing]” business in the West and routinely sold cold-rolled steel in the region. (Id. at 79 (citing Hr’g Tr. at 153, 190 (P.R. 157)).)
Second, Domestic Integrated Producers contend that there was a reasonable overlap of competition between Australian import and imports from all other subject countries. (Id.) The Domestic Integrated Producers challenge the ITC’s heavy focus on the West region. (Id. at 81.) Domestic Integrated Producers contend that the record evidence demonstrates that at least three other subject countries primarily shipped their imports to the West, and that the West was an important entry point for eight subject countries. (Id. at 81-82.) Domestic Integrated Producers conclude that this evidence supports a finding that there was a reasonable overlap of competition between Australian imports and imports from the other subject countries. (Id.)
C.Defendant’s Contentions.
Defendant contends that the ITC’s findings regarding the cumulation of subject imports from Australia was supported by substantial evidence and is otherwise in
Defendant discounts Domestic Integrated Producers’ contention that the ITC created a “low volume exception” to cumulation. (Id.) Defendant contends that the ITC followed the traditional analysis outlined in the statute and found that there was no “rivalry in the market place, where goods will be purchased from those who provide the ‘most for the money.’ ” (Id. at 94 (quoting Wieland Werke,
Regarding the Domestic Integrated Producer’s contentions that there was a reasonable overlap of competition between Australian imports and subject imports from other countries, Defendant asserts that the ITC’s finding of an absence of reasonable overlap between the domestic like product and the Australian product precludes cumulation regardless of overlap with other subject countries. (Id.) Defendant concludes that the ITC’s determination not to cumulate Australian imports was supported by substantial evidence. (Id. at 94-95.)
D. Defendant-Intervenors’ Contentions.
Second, Defendanb-Intervenors contend that the ITC’s finding that Australian imports did not compete with other subject imports is supported by substantial evidence. (BHP Steel’s Br. at 21; Def.-Intvs.’ Br. at 78.) Defendant-Intervenors note that, under the statute, the ITC must find that Australian imports compete with the domestic like product and imports from other subject countries in order to cumulate. (BHP Steel’s Br. at 21-22 (citing 19 U.S.C. § 1677(7)(G)(i)).) Defendant-Intervenors contend that the ITC correctly considered the four factors to cumulation: fungibility, geographic overlap, channels of distribution, and simultaneous presence in the market. (Id. at 22.) Contrary to Domestic Integrated Producers’ assertions, Defendanb-Intervenors contend that the ITC’s finding that there was limited fungibility with other subject imports is supported by record evidence that demonstrates that full-hard steel is not interchangeable with other cold-rolled products. (BHP Steel’s Br. at 22; Def.-Intvs.’ Br. at 78.) DefendanWIntervenors also note that the ITC’s determination is supported by the evidence that there was no geographic overlap between Australian imports and other subject imports because, with the exception of New Zealand, no other country sold exclusively to the West region. (BHP Steel’s Br. at 23 (citing Cold-Rolled I at 21 n. 85); Defendant Intervenors’ Br. at 78.) DefendanWInter-venors contend that the ITC also relied on
For these reasons, Defendant-Interve-nors contend that the ITC’s determination not to cumulate subject imports from Australia was supported by substantial evidence. (BHP Steel’s Br. at 24; Def.-Intvs.’ Br. at 79.)
Analysis
A. The ITC’s Cumulation Finding is Supported by Substantial Evidence.
The Court finds that the ITC’s determination not to cumulate subject imports from Australia is supported by substantial evidence or otherwise in accordance with law. Pursuant to § 1677(7)(G)(i), the ITC must cumulatively assess the subject imports from all countries as to which petitions were filed on the same day, if the imports compete with each other and with the domestic like product in the domestic market. 19 U.S.C. § 1677(7)(G)(i). Here, the ITC outlined the four factors generally considered in determining whether cumulation is appropriate: “(1) the degree of fungibility between the subject imports from different countries and between imports and the domestic like product, including consideration of specific customer requirements and other quality related questions; (2) the presence of sales or offers to sell in the same geographic markets of subject imports from different countries and the domestic like product; (3) the existence of common or similar channels of distribution for subject imports from different countries and the domestic like product; and (4) whether the subject imports are simultaneously present in the market.” Cold-Rolled I at 15 (citations omitted). The ITC correctly noted that this list of factors is nonexclusive and is “intended to provide the [ITC] with a framework for determining whether the subject imports compete with each other and with the domestic like product.” Id. at 16 (citing Wieland Werke,
1. The ITC’s Finding that There was No Reasonable Overlap of Competition Between Australian Subject Imports and the Domestic Like Product is Supported by Substantial Evidence.
The Court finds that there is substantial evidence in the record to support the ITC’s finding that there was no reasonable overlap of competition between Australian imports and the domestic like product. Contrary to Plaintiffs’ contention, the Court does not find that the ITC created a “low volume exception” to the cumulation statute. Following its long-standing practice, the ITC examined the competition between Australian imports and the domestic like product using the factors outlined above. See Wieland Werke,
Plaintiffs also contend that the ITC failed to address certain evidence submitted by petitioners during the administrative process that showed an overlap of competition between the domestic like product and Australian imports. As stated above, “the fact that certain information is not discussed in [an ITC] determination does not establish that the [ITC] failed to consider that information because there is no statutory requirement that the [ITC] respond to each piece of evidence presented by the parties.” Granges Metallverken,
2. The ITC’s Finding that There was No Reasonable Overlap of Competition Between Australian Subject Imports and Subject Imports from Other Countries is Supported by Substantial Evidence.
The Court finds that there is substantial evidence in the record to support the ITC’s finding that there was no reasonable overlap of competition between subject imports from Australia and subject imports from other countries. Again, the ITC focused its cumulation analysis around the four factors that are generally considered. Id. at 17 n. 85. In Coldr-Rolled I, the ITC examined several factors relating to competition between Australian imports and other subject imports. Id. The ITC conceded that although Australian imports were “present throughout the period examined,” the other factors considered did not indicate that cumulation was appropriate. Id. Plaintiffs do not present any evidence that detracts from the reasonableness of the ITC’s conclusion that there was no reasonable overlap of competition between the subject imports from Australia and the subject imports from other countries.
The Court holds that the ITC’s determination not to cumulate subject imports from Australia is supported by substantial evidence or otherwise is accordance with law.
Conclusion
For the reasons set forth above, the Court holds that the ITC’s final negative injury determinations are supported by
Notes
. Commerce found antidumping duty margins ranging from 153.56% for certain subject imports from India to 4.02% for subject imports from Taiwan. The specific margins for each country can be found at Cold-Rolled I at 36 n. 222 and Cold-Rolled II at 12 n. 59.
. Commerce found countervailing duty margins ranging from 12.58% for Brazil to 0.55% for certain Korean subject imports. The specific margins can be found at Cold-Rolled I at 28 n. 170.
. For the purposes of this opinion, the ITC’s determinations are considered together. Because the record before the ITC was nearly identical in both determinations, the ITC expressly adopted the findings and analysis of Cold-Rolled I in its final negative material injury determination in Cold-Rolled II. Cold-Rolled II at 4, 11-12, 14. Most of the ITC's substantive analysis is contained in Cold-Rolled /; thus, most citations in this opinion reference Cold-Rolled I and the ITC's determination in Cold-Rolled II is implicitly included.
. In June 2001, at the request of the President, the ITC conducted a Section 201 investigation of steel products imported between January 1997 and June 2001. Steel; Import Investigations, Inv. No. TA-201-73, 66 Fed. Reg. 67,304, 67,307 (Dec. 28, 2001). The Section 201 investigation included the cold-rolled products subject to these AD/CVD investigations. Cold-Rolled I at 27. In October 2001, the ITC determined that steel products, including cold-rolled steel products, "were being imported into the United States in such increased quantities as to be a substantial cause of serious injury to the domestic industry.” Id. (citing Steel; Import Investigations, 66 Fed.Reg. 67,304). Following the ITC's remedy recommendations issued in December 2001, the President announced safeguard tariffs on steel products, including the subject cold-rolled steel products in March 2002. Id. (citing Presidential Proclamation 7529 of March 5, 2002 — To Facilitate Positive Adjustment to Competition From Imports of Certain Steel Products, 67 Fed.Reg. 10,553 (Mar. 7, 2002) ("Presidential Proclamation 7529”)). The tariffs announced were 30% ad valorum in the first year, 24% ad valorum in the second year, and 18% ad valorum in the third year of the safeguard period. Id. (citing Annex to Presidential Proclamation 7529, ¶ 11(d)).
Safeguard actions are taken by the President under Section 203 of the Trade Act of 1974, 19 U.S.C. § 2253. However, safeguard actions are commonly referred to as "Section 201” relief or remedies referencing Section 201 of the Trade Act of 1974, 19 U.S.C. § 2251(a), which instructs the President to "take all appropriate and feasible action ... [to] facilitate efforts by the domestic industry to make a positive adjustment to import competition.” 19 U.S.C. § 2251(a). The parties refer to the ITC’s investigation and the President's subsequent tariff announcement as the Section 201 proceedings or tariffs, so the Court will do likewise.
. In full, § 1671 d(b)(l), covering countervailing determinations, and § 1673d(b)(l), covering antidumping determinations, state:
(1) In general
The Commission shall make a final determination of whether -
(A) an industry in the United States-
(i) is materially injury, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the Unites States is materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise with respect to which the administering authority has made an affirmative determination under subsection (a)[] of this section. If the Commission determines that imports of the subject merchandise are negligible, the investigation shall be terminated.
. A short ton is 2,000 pounds versus a long ton which is 2,240 pounds. Webster's 3rd New Int'l Dictionary 1399 (1981).
. "Selling in the merchant market refers to sales of the domestic like product to unrelated customers,’1 SAA at 852, 1994 U.S.C.C.A.N. at 4185, as opposed to captive production which occurs when "domestic producers internally transfer significant production of the domestic like product for the production of a downstream article,” 19 U.S.C. § 1677(7)(C)(iv). In this case, the ITC found that "all the elements of the captive production provision” were met; thus, the ITC focused "primarily on the merchant market ... in determining market share and the factors affecting financial performance.” Cold-Rolled I at 23; 19 U.S.C. § 1677(7)(C)(iv).
. Nucor presents the following chart to illustrate the comparisons:
Cold-Rolled Imports (Sept.2001 — April 2002)
Imports Subject To: % Change
AD/CVD + 201 Duties -79%
201 Duties Only -12.7%
AD/CVD Duties Only - 97.5%
Neither + 98.9%
(Id. at 25 (citing Prehr'g Br. of Nucor et al. Ex. 2 at 9).)
. One Defendant-Intervenor, BHP Steel Ltd. (comprised of BHP Steel (AIS) Pty Ltd., BHP New Zealand Steel Ltd., and BHP Steel), filed a separate brief specifically addressing this issue. (See Mem. of BHP Steel, Ltd. in Opp'n to the Pis.’ Rule 56.2 M. for J. on the Agency R. ("BHP Steel's Br.") at 2.) In their joint brief, Defendant-Intervenors expressly adopt the arguments presented in BHP Steel’s brief. (See Def.-Intvs.' Br. at 76.) The contentions are presented together herein.