Nevinnomysskiy Azot v. United States , 31 Ct. Int'l Trade 1373 ( 2007 )

Slip-Op. 07-130
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
NEVINNOMYSSKIY AZOT, et al., :
:
Plaintiffs, :
:
v. :
:
UNITED STATES, :
: Before: Judith M. Barzilay, Judge
Defendant, : Court No. 06-00013
: Public Version
and :
:
AGRIUM US, INC. & AD HOC :
COMMITTEE OF DOMESTIC :
NITROGEN PRODUCERS, :
:
Defendant-Intervenors. :
____________________________________:
OPINION
[Plaintiffs’ motion for judgment on the agency record is granted in part and denied in part.
Second Sunset Review remanded to ITC.]
White & Case, LLP (Jay C. Campbell), Walter J. Spak, (Scott S. Linciome), (Frank H. Morgan),
for Plaintiffs Nevinnomysskiy Azot, Novomoskovsk Azot JSC, JSC MCC Eurochem,
Kuybyshevazot JSC, JSC “Azot” Berezniki, and JSC “Azot” Kemerovo.
(Michael K. Haldenstein), (James M. Lyons), (Neal J. Reynolds), Andrea C. Casson, Office of
the General Counsel, United States International Trade Commission for Defendant United States.
Joel R. Junker & Associates (Joel R. Junker) for Defendant-Intervenor Agrium US, Inc.
Akin, Gump, Strauss, Hauer & Feld, LLP (Lisa W. Ross), (Valerie A. Slater), Margaret C. March
for Defendant-Intervenor Ad Hoc Committee of Domestic Nitrogen Producers.
Dated: August 28, 2007
Court No. 06-00013 Page 2
BARZILAY, JUDGE:
Plaintiffs Nevinnomysskiy Azot, Novomoskovsk Azot JSC, JSC MCC Eurochem,
Kuybyshevazot JSC, JSC “Azot” Berezniki, and JSC “Azot” Kemerovo (collectively “Plaintiffs”
or “Russian Respondents”) move pursuant to USCIT Rule 56.2 for judgment upon the agency
record, requesting the court to remand the United States International Trade Commission’s
(“ITC”) second sunset review determination. In an evenly divided vote,1 the ITC Commissioners
determined that revocation of antidumping duty (“AD”) orders on solid urea2 imports from
Russia and Ukraine (“subject imports”) likely would cause material injury to the U.S. industry
within a reasonably foreseeable time. Solid Urea from Russia and Ukraine, 70 Fed. Reg. 74,846
(USITC Dec. 16, 2005); accord Solid Urea from Russia and Ukraine, Inv. Nos. 731-TA-340
E&H (Second Review), Pub. 3821 (Dec. 2005) (“Second Review”). In effect, this determination
left the 20 year-old orders on the subject imports in place. For the reasons given below,
Plaintiffs' motion is granted in part and denied in part.
1
An evenly divided vote among ITC Commissioners constitutes an affirmative decision
pursuant to 19 U.S.C. § 1677(11).
2
Solid urea is a high-nitrogen-content fertilizer that is produced by reacting
ammonia with carbon dioxide. It is sold in both prilled and granular form. Solid
urea has many uses, primarily as a fertilizer, but also for industrial applications,
including urea-formaldehyde resins used in the adhesives industry (plywood and
particle board); molding powders; varnishes and foams; and for impregnating
paper, textiles, and leather. Solid urea is also used extensively as a synthetic
protein supplement for ruminant animals where tiny microprills are commonly
incorporated uniformly into animal feeds.
Solid Urea from Russia and Ukraine, Inv. Nos. 731-TA-340 E&H (Second Review), Pub. 3821
(Dec. 2005) at 5 (footnote omitted). Although chemically identical, granular and prilled differ
slightly in shape and size due to their respective production processes. See id. at 6, 16.
Court No. 06-00013 Page 3
II. Procedural History
On July 16, 1986, domestic producers of solid urea filed a petition with the Department
of Commerce (“Commerce”) and the ITC, alleging that dumped imports of solid urea from the
Union of Soviet Socialist Republics (“USSR”), the German Democratic Republic (“GDR”), and
Romania were materially injuring the U.S. industry. Staff Report to the Commission on Inv. Nos.
731-TA-340 E&H (Second Review) (Oct. 28, 2005) (“Staff Report”) at I-2. On July 14, 1987,
Commerce imposed AD orders on solid urea imports from those countries after it determined that
the subject imports were being sold in the United States at less than fair value, and the ITC
determined that the dumped imports were materially injuring the U.S. urea industry.
Antidumping Duty Order; Urea from the Union of Soviet Socialist Republics, 52 Fed. Reg.
26,367 (Dep't Commerce July 14, 1987); Antidumping Duty Order; Urea from the Socialist
Republic of Romania, 52 Fed. Reg. 26,367 (Dep't Commerce July 14, 1987); Antidumping Duty
Order; Urea from the German Democratic Republic, 52 Fed. Reg. 26,366 (Dep't Commerce July
14, 1987). After the collapse of the USSR, Commerce divided the original AD order into fifteen
orders applicable to each independent state of the former Soviet Union. Solid Urea from the
Union of Soviet Socialist Republics; Transfer of the Antidumping Duty Order on Solid Urea from
the Union of Soviet Socialist Republics to the Commonwealth of Independent States and the
Baltic States and Opportunity to Comment, 57 Fed. Reg. 28,828 (Dep't Commerce June 29,
1992). On April 3, 1998, Commerce revoked the AD order on imports from the former GDR
after a changed circumstances review. Solid Urea from the Former German Democratic
Republic: Final Results (Revocation of Order) of Changed Circumstances Antidumping Duty
Review, 63 Fed. Reg. 16,471 (Dep't Commerce Apr. 3, 1998).
Court No. 06-00013 Page 4
The ITC instituted the first sunset reviews of the remaining orders on March 1, 1999.
Solid Urea from Romania, Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan,
Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and
Uzbekistan, 64 Fed. Reg. 10,020 (USITC Mar. 1, 1999). After completing its investigation, the
ITC determined that revocation of the AD orders on solid urea imports from Romania and the
remaining independent states of the former Soviet Union, except Armenia, would materially
injure the U.S. urea industry in a reasonably foreseeable time. Solid Urea from Armenia,
Belarus, Estonia, Lithuania, Romania, Russia, Tajikistan, Turkmenistan, Ukraine, and
Uzbekistan, 64 Fed. Reg. 60,225 (USITC Nov. 4, 1999). Therefore, Commerce revoked the AD
order on Armenia but left the other orders in effect for another five years. Revocation of
Antidumping Duty Order: Solid Urea from Armenia, 64 Fed. Reg. 62,654 (Dep't Commerce Nov.
17, 1999); Continuation of Antidumping Duty Orders: Solid Urea from Belarus, Estonia,
Lithuania, Romania, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan, 64 Fed. Reg.
62,653 (Dep't Commerce Nov. 17, 1999).
On October 1, 2004, the ITC instituted the second sunset reviews, the results of which are
at issue in this case. Solid Urea from Belarus, Estonia, Lithuania, Romania, Russia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan, 69 Fed. Reg. 58,957 (USITC Oct. 1, 2004).
Because no domestic interested party participated in the reviews of the orders on Romania and
the remaining independent states of the former Soviet Union, except Russia and Ukraine,
Commerce revoked those orders.3 Solid Urea from Belarus, Estonia, Lithuania, Romania,
3
Pursuant to 19 U.S.C. § 1675(c)(3)(A), Commerce shall revoke an order or terminate an
investigation if no domestic interested party responds to notice of initiation of review.
Court No. 06-00013 Page 5
Tajikistan, Turkmenistan, and Uzbekistan: Final Results and Revocation of Orders, 69 Fed. Reg.
77,993 (Dep't Commerce Dec. 29, 2004). The ITC likewise terminated its reviews of the
revoked orders. Solid Urea from Belarus, Estonia, Lithuania, Romania, Tajikistan,
Turkmenistan, and Uzbekistan, 70 Fed. Reg. 2657 (USITC Jan. 14, 2005). Therefore, only solid
urea imports from Russia and Ukraine remained at issue in the ITC's second sunset reviews.
Domestic interested parties petitioned the ITC to leave the AD orders on the subject
imports from the two countries in effect for another five years. See, e.g., Second Review at 4
n.15. The ITC then proceeded with a full review4 of the subject imports after receiving adequate
responses from domestic interested parties5 and several Russian producers of solid urea.6 Id. at 5.
No Ukrainian producers of solid urea submitted responses to the ITC.7 Id. After completing the
investigation pursuant to 19 U.S.C. § 1675(c), ITC Chairman Pearson along with Commissioners
Koplan and Lane (“the majority”) determined that revocation of the orders would cause material
injury to the U.S. industry within a reasonably foreseeable time, while Commissioners Okun,
4
The ITC conducts a full, rather than expedited, review once it finds responses from all
interested parties adequate, or if other circumstances warrant. See 19 C.F.R. § 207.62(c).
5
The ITC received an adequate joint response from four domestic producers who are
members of Defendant-Intervenor Ad Hoc Committee of Domestic Nitrogen Producers
(“AHC"): CF Industries, Inc.; PCS Nitrogen Fertilizer; Terra Industries, Inc.; and Mississippi
Chemical Corporation. The ITC also received a separate adequate response from Defendant-
Intervenor Agrium US, Inc. Second Review at 5.
6
The ITC received adequate responses from Nevinnomysskiy Azot; Novomoskovsk Azot
JSC; Kuybyshevazot JSC; Salavatnefteorgsintez OJSC; Kemerovo OJSC “Azot”; OJSC Tolyatti
Azot; Azot OJSC, Berezniki; and MCC EuroChem. Second Review at 5.
7
The ITC “determined to conduct full reviews of both orders in order to promote
administrative efficiency in light of its decision to conduct a full review with respect to the order
on subject imports from Russia.” Second Review at 5.
Court No. 06-00013 Page 6
Hillman, and Aranoff (“the dissent”) disagreed. Solid Urea from Russia and Ukraine, 70 Fed.
Reg. 74,846; Second Review at 3 n.1. Therefore, Commerce left the orders on the subject
imports in effect. See Notice of Continuation of Antidumping Duty Orders: Solid Urea from the
Russian Federation and Ukraine, 71 Fed. Reg. 581 (Dep’t Commerce Jan. 5, 2006). Plaintiffs
brought suit in this Court to challenge the ITC's determination.
III. Statutory Background
Congress requires that Commerce and the ITC conduct sunset reviews every five years
after the initial publication of an AD order. 19 U.S.C. § 1675(c). In a sunset review proceeding,
Commerce must revoke an AD order unless it determines “that dumping . . . would be likely to
continue or recur,” and the ITC determines “that material injury [to the domestic industry] would
be likely to continue or recur.” § 1675(d)(2). In making its determination, the ITC must
“consider the likely volume, price effect, and impact of imports of the subject merchandise on the
[domestic] industry if the order is revoked . . . .” Id. § 1675a(a)(1). The ITC must
take into account ) (A) its prior injury determinations, including the volume, price
effect, and impact of imports of the subject merchandise on the industry before the
order was issued . . . , (B) whether any improvement in the state of the industry is
related to the order . . . , (C) whether the industry is vulnerable to material injury if
the order is revoked . . . , and (D) in an antidumping proceeding under section
1675(c) of this title, the findings of the administering authority [Commerce]
regarding duty absorption under section 1675(a)(4) of this title.
Id.
Court No. 06-00013 Page 7
Specifically, to evaluate the likely volume of subject imports, the ITC
consider[s] whether the likely volume . . . would be significant8 . . . either in
absolute terms or relative to production or consumption in the United States. In
doing so, the Commission shall consider all relevant economic factors, including
) (A) any likely increase in production capacity or existing unused production
capacity in the exporting country, (B) existing inventories of the subject
merchandise, or likely increases in inventories, (C) the existence of barriers to the
importation of such merchandise into countries other than the United States, and
(D) the potential for product-shifting if production facilities in the foreign country,
which can be used to produce the subject merchandise, are currently being used to
produce other products.
§ 1675a(a)(2).
When evaluating the likely price effects of subject imports, the ITC
consider[s] whether ) (A) there is likely to be significant price underselling by
imports of the subject merchandise as compared to domestic like products, and
(B) imports of the subject merchandise are likely to enter the United States at
prices that otherwise would have a significant depressing or suppressing effect on
the price of domestic like products.
§ 1675a(a)(3). The ITC “may rely on circumstantial, as well as direct, evidence of the adverse
effects of unfairly traded imports on domestic prices.” Statement of Administrative Action, H.R.
Rep. No. 103-316, at 886 (1994), as reprinted in 1994 U.S.C.C.A.N. 4040, 4211.
Finally, to evaluate the likely impact of subject imports, the ITC must
consider all relevant economic factors which are likely to have a bearing on the
state of the industry in the United States, including, but not limited to ) (A) likely
declines in output, sales, market share, profits, productivity, return on
investments, and utilization of capacity, (B) likely negative effects on cash flow,
inventories, employment, wages, growth, ability to raise capital, and investment,
and (C) likely negative effects on the existing development and production efforts
of the industry, including efforts to develop a derivative or more advanced version
of the domestic like product
8
“'Significant' is defined as 'having or likely to have influence or effect[;] deserving to be
considered[;] important, weighty, notable[.]'” Gerald Metals, Inc. v. United States, 22 CIT 1009,
1013, 27 F. Supp. 2d 1351, 1355 (1998) (brackets in original) (citation omitted).
Court No. 06-00013 Page 8
) all “within the context of the business cycle and the conditions of competition that are
distinctive to the affected industry.” § 1675a(a)(4).
While the ITC must consider all of the factors enumerated in the statute, no one factor is
necessarily dispositive.
The presence or absence of any factor which the Commission is required to
consider under this subsection [§ 1675a(a)] shall not necessarily give decisive
guidance with respect to the Commission's determination of whether material
injury is likely9 to continue or recur within a reasonably foreseeable time10 if the
order is revoked . . . . In making that determination, the Commission shall
consider that the effects of revocation or termination may not be imminent, but
may manifest themselves only over a longer period of time.
§ 1675a(a)(5); accord 1994 U.S.C.C.A.N. at 4211.
IV. Jurisdiction & Standard of Review
This Court has “exclusive jurisdiction of any civil action commenced under” 19 U.S.C.
§ 1516a to review an ITC's sunset review determination. 28 U.S.C. § 1581(c). The court will
uphold the ITC's determination unless it is “unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). “Substantial evidence is
more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59
S. Ct. 206, 217 (1938).
9
The term “likely” typically means “probable,” not merely “possible.” Usinor v. United
States, 26 CIT 767, 794 (2002) (not reported in F. Supp.) (quotations omitted). Under the
likelihood standard, the ITC “engage[s] in a counter-factual analysis: it must decide the likely
impact in the reasonably foreseeable future of an important change in the status quo.” 1994
U.S.C.C.A.N. at 4209.
10
The term “'reasonably forseeable time' will vary from case-to-case, but normally will
exceed the 'imminent' timeframe application in a threat of injury analysis.” 1994 U.S.C.C.A.N.
at 4211.
Court No. 06-00013 Page 9
In a material injury determination, the ITC should take “into account the entire record,
including whatever fairly detracts from the substantiality of the evidence.” Atl. Sugar, Ltd. v.
United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984). However, the fact that plaintiffs “can point
to evidence of record which detracts from the evidence which supports the Commission's
decision and can hypothesize a reasonable basis for a contrary determination is neither surprising
nor persuasive.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 936 (Fed. Cir.
1984). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency's finding from being supported by substantial evidence.”
Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026 (1966) (citing NLRB v.
Nev. Consol. Copper Corp., 316 U.S. 105, 106, 62 S. Ct. 960, 961 (1942); Keele Hair & Scalp
Specialists, Inc. v. FTC, 275 F.2d 18, 21 (5th Cir. 1960)). When “the totality of the evidence
does not illuminate a black-and-white answer,” it is the role of the ITC as the “expert factfinder”
to decide which side is most likely accurate. Nippon Steel Corp. v. United States, 458 F.3d 1345,
1359 (Fed. Cir. 2006). Therefore, the court will not “displace” an agency's “choice between two
fairly conflicting views, even though the court would justifiably have made a different choice had
the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71
S. Ct. 456, 465 (1951).
Factual determinations of the ITC are “presumed to be correct,” and “[t]he burden of
proving otherwise shall rest upon the party challenging such decision” in this Court. 28 U.S.C.
§ 2639(a)(1). Furthermore, “'[t]he ITC is not required to explicitly address every piece of
evidence presented by the parties, and absent a showing to the contrary, the ITC is presumed to
have considered all of the evidence on the record.'” Nucor Corp. v. United States, 28 CIT__, __,
Court No. 06-00013 Page 10
318 F. Supp. 2d 1207, 1247 (2004) (quoting USEC, Inc. v. United States, 34 F. App'x. 725,
730-31 (Fed. Cir. 2002)) (brackets in original), aff'd, 414 F.3d 1331 (Fed. Cir. 2005); accord
Torrington Co. v. United States, 16 CIT 220, 224, 790 F. Supp. 1161, 1167-68 (1992), aff'd, 991
F.2d 809 (Fed. Cir. 1993). “A court may 'uphold [an agency's] decision of less than ideal clarity
if the agency's path may reasonably be discerned.'” Ceramica Regiomontana, S.A. v. United
States, 810 F.2d 1137, 1139 (Fed. Cir. 1987) (quoting Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 286, 95 S. Ct. 438, 442 (1974)) (brackets in original). Nevertheless, the
ITC “must assess, based on currently available evidence and on logical assumptions and
extrapolations flowing from that evidence, the likely effect of revocation of the antidumping
order on the behavior of the importers.” Matsushita, 750 F.2d at 933.
V. Likelihood of Reasonable Overlap of Competition
Plaintiffs appeal the ITC's finding that there is likely to be a reasonable overlap of
competition between the subject imports and the domestic like product if Commerce revokes the
AD orders. Russian Resp'ts' Mem. P. & A. Supp. USCIT R. 56.2 Mot. J. A.R. 26 (“Pls. Mem.”).
The ITC cannot conclude that material injury likely would continue or recur due to revocation if
competition between the subject imports and the domestic like product likely would be very
attenuated. See Altx, Inc. v. United States, 26 CIT 709, 713-14 (2002) (not reported in F. Supp.).
More specifically, without fungibility between the subject imports and the domestic like product,
it would be difficult to conclude that material injury likely would continue or recur due to
revocation. See, e.g., BIC Corp. v. United States, 21 CIT 448, 456, 964 F. Supp. 391, 400 (1997)
(citing G.M. Corp. v. United States, 17 CIT 697, 711-12, 827 F. Supp. 774, 787-88 (1993))
Court No. 06-00013 Page 11
(“[F]ungibility plays a far more important role in the causation context than in either the like
product or cumulation contexts; the more fungible two products are, the more likely underselling
by one will affect the price of the other.”).
The ITC generally considers four factors when analyzing the likelihood of a reasonable
overlap of competition: “(1) the degree of fungibility[11] between products; (2) the presence of
sales or offers to sell in the same geographic markets; (3) the existence of common or similar
channels of distribution; and (4) the simultaneous presence of imports in the market.” Wieland
Werke, AG v. United States, 13 CIT 561, 563, 718 F. Supp. 50, 52 (1989); accord Second Review
at 8 n.45. No single factor is determinative, and the list is not exhaustive, as the ITC may
consider other conditions of competition. See Wieland, 13 CIT at 563, 718 F. Supp. at 52. To
support the ITC's finding, there need be only a likelihood of reasonable, not complete, overlap of
competition between the subject imports and the domestic like product. See id. (citing Florex v.
United States, 13 CIT 28, 38, 705 F. Supp. 582, 592 (1989)).
A. The ITC's Finding
Before issuing the material injury determination, all six ITC Commissioners concluded
that there likely would exist a reasonable overlap of competition, specifically noting that “the
11
Although the term "fungible" generally denotes a stricter standard of market
interchangability than "substitutable," the ITC and much case law in this area treat the terms as
having identical meanings. See, e.g., Siderca, S.A.I.C. v. United States, 28 CIT __, __, 350 F.
Supp. 2d 1223, 1228 (2004) ("Degree of fungibility refers to the degree to which consumers of
SLP find foreign and domestic SLP substitutable for one another."). The statutory scheme
suggests that "substitutable" more closely reflects the intent of Congress. See, e.g., 19 U.S.C.
§ 1677(10) ("The term 'domestic like product' means a product which is like, or in the absence of
like, most similar in chracteristics and uses with, the article subject to an investigation under this
subtitle.") & (25) ("The term 'subject merchandise' means the class or kind of merchandise that is
within the scope of an investigation, a review, . . . an order under this subtitle . . . , or a finding
under the Antidumping Act, 1921.").
Court No. 06-00013 Page 12
subject imports and domestic like product are likely to be sufficiently fungible.” Second Review
at 12. Currently, about three-quarters of the domestic like product is granular urea, and the rest
prilled, while the overwhelming majority of the subject imports would be prilled urea. Id. at 11-
12.12 The ITC has treated prilled and granular urea as a single like product since the original
determination. Id. at 6-7. They share most physical characteristics, are chemically identical, and
are both used for fertilizer and industrial purposes. The distinction between the two forms is that
“[t]he production processes . . . differ in the final processing of molten urea into small solid
pellets.” Id. at 6; see also Avesta AB v. United States, 13 CIT 894, 905, 724 F. Supp. 974, 983
(1989), aff'd, 914 F.2d 233 (Fed. Cir. 1990).
In these reviews, the ITC noted that some domestic market segmentation has developed
between granular and prilled urea. Second Review at 11-12. In general, farmers and purchasers
prefer granular urea “for use as fertilizer in the United States, [although] substitution can and
does occur. Granular urea's particles, which have an irregular surface and uniform size, are better
for blending with other fertilizers.” Id. at 12 (footnotes omitted).13 However, only a small
portion of urea “used as fertilizer in the United States is blended with other fertilizers, limiting
the importance of this distinction,” as the majority of urea used as fertilizer is directly applied.
Id.
12
[[ ]], and it represented less than [[ ]] percent of Russia's total urea capacity in
2004. Staff Report at IV-5, Table IV-3.
13
The ITC noted that “[[ ]] percent of domestic consumption of prilled urea is used as
fertilizer” and that “Russian prilled urea is used as fertilizer” in other countries. Second Review
at 12.
Court No. 06-00013 Page 13
Referencing purchasers' responses, the ITC concluded that some farmers and purchasers
would switch from granular urea to prilled if it were sold at a considerable discount. Id. at 12
n.73, 23 n.184; see also id. at 22 (citing Staff Report at Table II-1, II-2). Further, “the subject
imports are likely [to] be fungible with at least the prilled portion of the U.S. market, except
apparently the pharmaceutical and animal feed markets,” which comprise only [[ ]] percent of
domestic shipments in 2004, because no Russian or Ukrainian producer manufactures
microprilled urea suitable for the animal feed market or formaldehyde-free urea suitable for
pharmaceutical use. Second Review at 11-12; see id. at 12 n.72; Staff Report at Table V-1, V-2.
Nonetheless, the ITC acknowledged that “approximately [[ ]] percent of the domestic
industry’s total production” likely would be unaffected by revocation of the AD orders. Second
Review at 12 n.78 (citing Russian Resp’ts’ Final Comments 12 (See Def.-Intervenor AHC's
("Def.-Int.") App. 17 (CR 136)); AHC’s Posthr'g Br. Ex. 12 (See Pls. App. 16 (CR 118))).
The ITC also noted the difficulty of evaluating factors other than fungibility since the
subject imports have not entered the domestic market since 1987. Id. at 12. Due to this absence
of import data, the ITC cited evidence which further supported its finding of likely overlap of
competition, such as the fact that “[i]nternational trading companies offer solid urea from
multiple countries, including the subject countries, for sale” and that the ITC “found in the
original investigations that domestic and imported urea were directed to the same customers and
were frequently commingled in wholesalers' warehouses.” Id. at 12-13 (footnotes omitted).
Therefore, the ITC reasoned that “it is likely that these trading companies would [again] offer the
subject imports for sale” in the U.S. if Commerce revokes the orders. Id. at 13 (footnote
omitted).
Court No. 06-00013 Page 14
B. The ITC's Finding Is Supported by the Record
In their appeal, Plaintiffs assert that any overlap of competition would be limited. Pls.
Mem. 26. First, they claim that the ITC ignored evidence of domestic market segmentation
between granular and prilled urea for fertilizer use, a division which, according to Plaintiffs,
renders the subject imports less fungible with the domestic like product because the
overwhelming majority of the subject imports are prilled. Pls. Mem. 29-31. Plaintiffs cite to a
few fertilizer distributors that claim some of their customers would not switch from granular to
prilled urea even with a considerable discount. Pls. Mem. 30 (citing Pls. App. 20 (CR 120) (Pls.
Posthr'g Br. Ex. 12) (Decl. of [[ ]]); Pls. App. 21 (CR 120) (Pls. Posthr'g Br. Ex. 11) (Decl.
of [[ ]]); Pls. App. 22 (CR 68) ([[ ]] Importers' Questionnaire Resp. Part III-B-9); Pls. App. 23
(CR 40) ([[ ]] Questionnaire Resp. Part III-38)). As already discussed, the ITC acknowledged
evidence of domestic market segmentation and found the two forms of urea sufficiently fungible
despite a degree of market segmentation. Second Review at 11-12; see, e.g., Staff Report at I-25
(noting that Plaintiff MCC Eurochem “reported that most of the prilled urea it sells to export
markets are used in fertilizer applications”). That Plaintiffs can cite to some evidence which
detracts from the evidence supporting the ITC's conclusion does not render the ITC's finding of a
likelihood of reasonable overlap of competition unreasonable. See Matsushita, 750 F.2d at 936.
Further, that some farmers and purchasers merely prefer granular urea over prilled does not
render the two forms non-substitutable.14
14
“[T]he information suppled [sic] by the Russian Respondents only indicates that
granular urea is preferred for use as fertilizer because it is a higher quality product than prilled
urea, not that it is unsuitable.” Second Review at 23 n.184 (emphasis added). In addition, the
preference for granular urea may not be due to quality alone, further undercutting Plaintiffs'
argument. Another factor which affects purchasing decisions is the low availability of prilled
Court No. 06-00013 Page 15
Plaintiffs also claim that the ITC failed to consider that the subject imports are more
likely to displace nonsubject imports than domestic producers' shipments because nonsubject
imports serve almost two-thirds of the domestic market. Pls. Mem. 31-32; see also Second
Review at 21 n.172. Specifically, they reason that domestic importers would lack incentive to
import urea from Russia and Ukraine because most nonsubject imports “were entered either by
U.S. producers or companies affiliated with producers in nonsubject countries.” Pls. Mem. 32;
accord Pls. Mem. 31-32. As the record demonstrates, though, many domestic companies
affiliated with foreign producers reported that they imported from sources other than their foreign
affiliates. Def-Int. App. 12 (CR 68) ([[ ]] Importers' Questionnaire Resp. Part II-7); Def-Int.
App. 14 (CR 36) ([[ ]] Importers' Questionnaire Resp. Part II-7); Def.-Int. App. 15 (CR 95)
([[ ]] Importers' Questionnaire Resp. Part II-7); Def.-Int. App. 16 (CR 46) ([[ ]] Importers'
Questionnaire Resp. Part II-7). Further, the ITC explicitly stated that “given that nonsubject
imports serve almost two-thirds of the U.S. market, it may be true that subject imports would
undersell and displace nonsubject imports to some extent. However, this does not preclude the
fact that domestic shipments will also likely be displaced.” Second Review at 21 n.172.
Plaintiffs also claim that the ITC ignored evidence that “some U.S. production is shielded
from competition by virtue of the geographic locations of the production facilities.” Pls. Mem.
28. In particular, they point to shipments by [[ ]], a domestic producer of urea, which
urea in the domestic market. See Def.-Int. App. 9 (CR 118) (AHC's Posthr'g Br. 5). In fact,
availability of supply ranks above quality, but below price, as the principal factor in consumers'
purchasing decisions. Staff Report at II-13, Table II-1. In addition, while the Staff Report
reduced the substitution elasticity estimate due to the shift toward granular urea in the U.S.
market, the estimate “is not intended to be a measure of changes in substitutability since the 1995
study.” Id. at II-24.
Court No. 06-00013 Page 16
operates facilities in [[ ]]. Pls. Mem. 28 (referencing Second Review at 41). However,
[[ ]] did not report that it would be shielded from import competition; to the contrary, it
indicated that revocation of the orders would result in “[[ ]].” Def.-Int. App. 5 (CR 38) ([[ ]]
Producer Questionnaire Resp. Part II-16).
Finally, Plaintiffs argue that a much larger share of the U.S. industry’s shipments likely
will not face competition because two domestic purchasers, [[ ]] and [[ ]], reported
that “they must purchase 60 percent and 75 percent, respectively, of their urea from U.S.
producers due to security of supply and delivery cost concerns.” Pls. Mem. 27 (citing Staff
Report at II-14). This conclusion mischaracterizes the purchasers’ responses regarding their
purchasing decisions. [[ ]] reported that if Commerce revokes the AD orders, the firm
would become “more active in importation of Russian/Ukrainian urea” and that
“Russian/Ukrainian urea could be used as a new or alternative source” in the total U.S. supply.
Pls. App. 17 (CR 117) ([[ ]] Purchasers’ Questionnaire Resp. Part III-38). Similarly, [[ ]]
reported that revocation of the orders “would increase supply availability to the U.S. market.”
Pls. App. 18 (CR 42) ([[ ]] Purchasers' Questionnaire Resp. Part III-38).
Accordingly, the court affirms the ITC’s finding of a likely reasonable overlap of
competition between the subject imports and the domestic like product if Commerce revokes the
AD orders.
VI. Likelihood of Continuation or Recurrence of Material Injury
Plaintiffs challenge the ITC's determination that revocation of the orders would cause the
continuation or recurrence of material injury to the domestic urea industry within a reasonably
foreseeable time. Following the statutory criteria, the ITC concluded that, if Commerce revokes
Court No. 06-00013 Page 17
the AD orders, the likely volume of the subject imports would be significant, the likely
underselling of the subject imports would have significant adverse price effects on the domestic
urea market, and the subject imports likely would have a significant adverse impact on the
domestic industry. Second Review at 21, 23, 27; see also § 1675a(a)(1).
A. Likely Volume of Subject Imports
After taking into account its prior injury determinations and examining the existence of
third-country barriers to the subject imports, and the subject industries' ability and incentive to
divert their exports, the ITC found that the likely volume of the subject imports would be
significant if Commerce revoked the AD orders. Second Review at 20-21; see also § 1675a(a)(1)
(stating that ITC is required to consider its prior injury determinations in five-year review) & (2)
(stating that to evaluate likely volume of subject imports, ITC may consider all economic factors,
including but not limited to any unused capacity in exporting countries, inventories of subject
merchandise, existence of third-country barriers, and potential for product-shifting). Plaintiffs
challenge the relevance of the ITC's prior injury determinations and the existence of third-country
barriers in the present case, and the finding that the subject industries have incentive to divert
their exports.
1. The ITC's Prior Findings
The ITC turned to its past investigations to support its volume analysis, given the lack of
recent import data. In the original 1987 investigation, the ITC found that the subject imports
“increased sharply” from 1985 to 1986. Second Review at 19 (citing Urea from the German
Democratic Republic, Romania, and the Union of Soviet Socialist Republics, Inv. Nos.
731-TA-338-340 (Final), Pub. 1992 (July 1987) (“Original Determination”) at Table 19).
Court No. 06-00013 Page 18
Likewise, in the first sunset reviews, it found that the likely volume of the subject imports would
be significant if Commerce revoked the AD orders because the subject industries had low
capacity utilization rates and exported the overwhelming majority of their shipments, and
because China had just ceased importing urea, “leaving the United States as one of the largest
remaining export markets” to which the subject industries would divert a large volume of their
exports. Id. at 20; accord id. at 19-20 (citing Solid Urea from Armenia, Belarus, Estonia,
Lithuania, Romania, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan, Inv. Nos.
731-TA-339 & 340-A-I (Review) Pub. 3248 (Oct. 1999) (“First Review") at 18-19). Although
the ITC does not draw explicit conclusions, it implies that, based on this historical background,
the likely volume of the subject imports would be significant again if Commerce revokes the
orders.
Plaintiffs argue that the ITC's prior injury determinations have little contemporary
relevance due to the domestic market's increasing segmentation between granular and prilled
urea. However, as discussed supra, the two forms of urea are sufficiently substitutable, rendering
Plaintiffs' argument unsupported by the record.
2. Third-Country Barriers
The ITC also cited the existence of third-country barriers to support its volume analysis.
Id. at 20. China ceased importing urea in 1998; Mexico imposed antidumping measures on
Ukrainian exports in 2003; and the European Union (“EU”) imposed antidumping measures on
Russian imports in 1995 and Ukrainian imports in 2002. Id.; Staff Report at IV-10, IV-13.
Although the ITC does not elaborate, it seems to imply that the mere presence of these third-
country barriers would cause a likely increase in the volume of the subject imports if Commerce
Court No. 06-00013 Page 19
revokes the orders.
Plaintiffs argue that the presence of third-country barriers does not support the ITC’s
volume analysis because the global market has adjusted to the presence of the cited barriers, and
therefore, absent other factors, trading companies would have no reason to divert a significant
volume of the subject imports from these countries to the U.S. if Commerce revokes the orders.
Pls. Mem. 14-15.
Ample case law teaches that in the context of sunset reviews, the ITC examines "'the
existence of barriers to the importation of [the subject] merchandise into countries other than the
United States'" to determine whether they "may encourage product-shifting" of the subject
merchandise to the domestic market. Relevant barriers need not be limited to antidumping
measures. Siderca S.A.I.C. v. United States, 29 CIT __, __, 391 F. Supp. 2d 1353, 1367-68
(2005) (quoting 19 U.S.C. § 1675a(a)(2)(c)), appeal dismissed, 167 F. App'x 178 (Fed. Cir.
2006); see Comm. for Fair Beam Imps. v. United States, 31 CIT __, __, 477 F. Supp. 2d 1313,
1317 (2007). "[H]igh tariffs and non-tariff barriers" may also prove relevant to the volume
analysis. Siderca, S.A.I.C. v. United States, 28 CIT __, __, 350 F. Supp. 2d 1223, 1235 (2004).
Though the ITC has presented evidence of the presence third-country barriers to the
subject imports, some of the cited barriers lead to an ambiguous conclusion. Crucially, Russian
exports to the EU have rapidly increased despite the EU's measures. Second Review at 9 n.49
(citing Staff Report at IV-10), 20-21. That the EU's measures have not significantly dampened
Plaintiffs' access to one of the world's largest markets erodes their significance with respect to the
the ITC's volume analysis. From the record, it would seem that the EU's measures bear relevance
only to the degree that some unpredictable market changes in the EU might, at some point, lead
Court No. 06-00013 Page 20
the subject industries to divert their exports to the United States. See, e.g., Second Review at 20
(noting that ITC has interpreted third-country barriers relevant when other export markets, such
as a China, would no longer absorb additional exports, and thus cause likely diversion of subject
imports to United States). EU domestic prices, though, would have to fall substantially for the
EU's antidumping measures to significantly displace Russian exports and thereby catalyze such a
market disruption. See Staff Report at IV-10 (noting that “[i]f European prices were to fall again,
the antidumping measures could once again be a barrier to Russian exports of urea. However,
[EU] prices would have to fall substantially to reach the minimum price and to [transform] this
provision [into an effective blockade against Russian imports].” (footnote omitted)). The record
evidence does not reveal the likelihood of any such event occurring. Because of this deficiency,
the court remands this section for further analysis. See Bando Chem. Indus., Ltd. v. United
States, 16 CIT 133, 136, 787 F. Supp. 224, 227 (1992) (holding that ITC must make “'rational
connection between the facts found and the choice made'” (quoting Bowman, 419 U.S. at 285, 95
S. Ct. at 441)).
3. Incentive to Divert Exports
To further bolster its volume finding, the ITC found that the subject industries would
have incentive15 to divert their exports to the U.S. for three reasons. First, the subject industries
are “highly export oriented.” Second Review at 20.16 Second, the ITC found that Russian
15
The ITC also found, and Plaintiffs do not contest, that the subject industries have the
ability to divert rapidly a significant volume of their exports from foreign markets to the
domestic market if Commerce revokes the orders. Second Review at 21 & n.167.
16
Plaintiffs reason that, while the ITC has an established practice of examining whether
the subject industries are export oriented, this fact has little relevance in the present case because
the overwhelming majority of the subject imports would be prilled, while there is an increasing
Court No. 06-00013 Page 21
exporters already have shown interest in selling in the United States if domestic urea prices
exceed those in other markets and that U.S. urea prices are relatively higher than those in other
markets. Id. at 21 (citing AHC's Posthr'g Br. Ex. 16; AHC's Posthr'g Br. Ex. 22). Finally, the
ITC concluded that the subject industries would have incentive to divert exports to the United
States due to a projected future global oversupply of solid urea and the U.S. market's status as
“the largest importer in the world of solid urea.” Id.; see also id. at 19 n.144 (noting that two
leading industry experts which follow global urea trends forecast oversupply of urea in near
future as global urea capacity outpaces consumption).
a. Pricing Analyses
Plaintiffs argue that the ITC erroneously concluded that the subject industries will have
incentive to divert exports to the domestic market because it inappropriately relied on AHC's two
analyses which demonstrate that U.S. prilled urea prices, net transportation costs and duties, are
higher than prilled urea prices in Brazil and at Black Sea ports.17 Pls. Mem. 18; Pls. Reply Br. 9.
While the AHC's nine-month comparison between U.S. and Brazilian prices is not an ideal piece
of evidence, as the period of review spanned five years, Plaintiffs had ample time at the
administrative level to submit evidence demonstrating that U.S. prices may be lower than
Brazilian prices, but failed to do so. The court therefore does not find the ITC's reliance on the
AHC's comparison unreasonable, given that the ITC based its conclusion on currently available
information in the record. See Matsushita, 750 F.2d at 933; Second Review at 21. Likewise, the
preference for granular urea in the domestic market. Pls. Mem. 14-16. As discussed above in
Section V, this argument fails because granular and prilled urea are sufficiently substitutable.
17
Brazil is the “largest export market” for the subject imports, and the Black Sea ports are
the “principal shipping points” for the subject imports. Second Review at 21.
Court No. 06-00013 Page 22
court finds that the ITC reasonably relied on the AHC's analysis of U.S. and Black Sea port
prices, given that the evidence as a whole supports the ITC's conclusion and that the ITC
Commissioners asked the AHC for more information about its analysis and heard testimony
concerning the credibility of the evidence. See NLRB v. Link-Belt Co., 311 U.S. 584, 597, 61 S.
Ct. 358, 365 (1941) (holding that specialized federal agency has power to appraise credibility of
evidence and testimony in establishing factual findings); Def.-Int. App. 9 (CR 118) (AHC's
Posthr'g Br. Ex. 16); Def.-Int. Pub. App. 1 (PR 155) (Tr. 48-51, 107-08, 165-67, 181-82, 188-
89).
b. Global Urea Oversupply
Plaintiffs also challenge the ITC's conclusion that the subject industries will have
incentive to divert exports to the domestic market due to a forecast global oversupply of urea on
two grounds: (1) that the ITC relied on flawed evidence to support its global oversupply
projection, and (2) that the ITC failed to account for evidence which undermined its finding.
Plaintiffs attempt to undermine the credibility of industry reports from two expert studies
which forecast global oversupply. Plaintiffs claim that the ITC failed to take into account that
one study's projections of future global oversupply assumed no production facility closures, even
though plant closures and delays have occurred worldwide and may continue, thereby possibly
causing disruption in future supply. Pls. Mem. 23-24. However, a review investigation is
“inherently predictive,” and Plaintiffs present no substantial evidence, except for an alternative
view, that undermines the credibility of the study's data. See Matsushita, 750 F.2d at 933. With
Court No. 06-00013 Page 23
respect to the second study's reports,18 Plaintiffs claim that the data is flawed because it contains
nothing “to enable a reader to determine” how the study arrived at its conclusions. Pls. Mem. 24.
However, the second study included details of [[ ]] which will rapidly expand urea capacity
from 2005 through 2015. Pls. App. 14 (CR 113) (AHC's Prehr'g Br. Ex. 2, 11-12). Likewise, it
detailed [[ ]]. Pls. App. 15 (CR 132) (AHC's Oct. 26, 2005 Submission, Attach. 1, 89-93).
The ITC has discretion to rely on particular experts when the evidence is reasonable, and
Plaintiffs presented nothing to compel the court to question the reasonableness of the studies.19 20
18
AHC submitted into the record two reports from [[ ]], one report that AHC
commissioned and a second, non-commissioned report, which it submitted as an attachment to its
Posthearing Brief.
19
Plaintiffs claim that Chairman Pearson's decision to discount global oversupply
forecasts, due to “the inherent difficulty in predicting urea production capacity levels," renders
the rest of his volume analysis unsupported by substantial evidence. Second Review at 19 n.146;
Pls. Mem. 35. However, Chairman Pearson's analysis is sustainable, as no one factor is
dispositive in making a volume determination. See § 1675a(a)(2).
20
Plaintiffs also argue that the ITC’s decision to place little weight on the subject
industries' recently high capacity utilization rates, which limit the subject industries' ability to
increase production significantly and thereby increase their volume of exports, contradicts the
Court's reasoning in Nippon Steel Corp. v. United States, 27 CIT 1856, 1865 n.22, 301 F. Supp.
2d 1355, 1365 n.22 (2003) (holding that ITC could not properly conclude that impact on
domestic industry would be discernible and adverse because capacity utilization rates would
fluctuate in future “merely because utilization rates have fluctuated in the past”), rev'd on
grounds other than those upon which Plaintiffs base their argument, Slip. Op. 60-69, 2007 WL
2119859 (Fed. Cir. Jul. 25, 2007). Pls. Mem. 33. However, unlike in Nippon Steel, in the
present case, the ITC did not conclude that the capacity utilization rates would fluctuate in the
future to the extent that the domestic industry would be adversely impacted. Rather, it merely
gave little weight to recent capacity utilization rates because they were not “consistently high
during the period of review.” Second Review at 20. High capacity utilization rates do not
preclude a finding of likely significant increase in volume because trading companies could
easily divert shipments of the subject imports to the domestic market if Commerce revokes the
AD orders. Id. at 21; accord Goss Graphic Sys., Inc. v. United States, 22 CIT 983, 990-91, 33 F.
Supp. 2d 1082, 1090 (1998), aff'd, 216 F.3d 1357 (Fed. Cir. 2000); see also § 1675a(a)(5). In
addition, “[t]he trend toward increasing capacity utilization" for the subject industries was
"irregular” during the period of review, and two Russian producers plan to expand their capacity
Court No. 06-00013 Page 24
See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 1861 (1989)
(holding that when agency reaches a reasonable decision, it may rely on its own qualified experts,
even if party presents conflicting views of another expert).
The court does not credit Plaintiffs' argument that the ITC failed to address a statement
by Agrium's CFO Bruce Waterman that the market "would be 'balanced to a little bit tight over
the next few years.'" Pls. Mem. 22 (quoting Pls. App. 7 (White & Case Tr. of relevant parts of
Mr. Waterman's remarks 13:07-15:18). Plaintiffs reason that Waterman's conclusion renders the
ITC's reliance on the industry forecasts unsupported by substantial evidence. Pls. Mem. 22. The
court, though, finds that Waterman's conclusion neither undermines nor contradicts the ITC's
reliance on the contested forecasts, which indicate that the global supply/demand balance will
remain tight in the next few years, but then will expand into surplus through 2009. See Second
Review at 18-19 (citing Staff Report at IV-16, Table IV-10); Def.-Int. App. 9 (CR 118) (AHC's
Posthr'g Br. Ex. 8, 8); Def.-Int. App. 9 (CR 118) (AHC's Posthr'g Br. 8). Further, Plaintiffs
mischaracterize Waterman's comments, which concerned the broader nitrogen fertilizer industry
and not specifically solid urea. Pls. App. 7 (White & Case Tr. of relevant parts of Mr.
Waterman's remarks 13:07-15:18).
In sum, while the ITC presents a reasonable case that the subject industries have the
ability and incentive to divert their exports to the United States, the court finds the ITC's
discussion of third-country barriers unsupported by the record because the ITC fails to explain
the barriers' relevance, particularly in light of their inability to hinder imports of the subject
in the near future. Staff Report at IV-6; accord id. at IV-4; see also Second Review at 10. The
court will not disturb the ITC's decision to discount the recent capacity utilization rates.
Court No. 06-00013 Page 25
merchandise. In addition, the ITC failed to find three statutory factors for accessing the likely
volume of the subject imports if Commerce revokes the orders. See Second Review at 20 (noting
that subject industries' inventories were small and that capacity utilization rates were recently
high); Staff Report at IV-6 (noting that subject industries have no potential for product shifting).
It is true that the ITC is not limited to the consideration of the four delineated factors, see
§ 1675a(a)(2), and it is thus permissible for the ITC to place more emphasis on some economic
factors than others because its “decision does not depend on the 'weight' of the evidence, but
rather on the expert judgment of the Commission based on the evidence of record.” Matsushita,
750 F.2d at 933 (footnote omitted). Nevertheless, because the court is not convinced by the
ITC's current explanation of third-country barriers, as it is not supported by substantial evidence
on the record, the court remands the ITC's finding on the likely volume of the subject imports for
further clarification.
B. Likely Price Effects
After taking into account its past investigations, examining the likelihood of the subject
imports underselling the domestic like product, and determining whether such underselling
would, in turn, depress U.S. urea prices, the ITC found that the subject imports likely would have
significant adverse price effects on the domestic like product. Second Review at 22-23; see also
§ 1675a(a)(1) & (3). Plaintiffs challenge these findings.
1. The ITC's Prior Findings
In the original 1987 investigation, the ITC found that the subject imports undersold the
domestic like product significantly, causing U.S. urea prices to decline by 41 to 56 percent from
1985 to 1986. Second Review at 22 (citing Original Determination at 9). Likewise, in the first
Court No. 06-00013 Page 26
sunset reviews, the ITC concluded that the subject imports likely would undersell domestic urea
significantly, and thereby cause U.S. urea prices to decline if Commerce revoked the orders,
because consumers generally purchased urea from the lowest priced supplier, and the subject
industries undersold their exports in third-country markets. Id. (citing First Review at 20-21).
While the ITC Commissioners do not elaborate on the relevance of these past findings in the
current reviews, their analysis implies that the majority believes that the subject imports likely
would have adverse price effects again on the domestic like product if Commerce revokes the
orders.
2. The ITC's Underselling Analysis & Plaintiffs' Claims
In addition to its past determinations, the ITC found the subject imports likely to
undersell the domestic like product if Commerce revokes the orders. During the period of
review, U.S. urea prices doubled due to sharp increases in domestic natural gas prices because
natural gas, the main raw material used to produce urea, accounts for a substantial portion of
urea's production costs. See id; Staff Report at V-1. In contrast, the subject industries have
access to low-cost natural gas, allowing them to undersell domestic urea and still make a profit.
Second Review at 23. Given this disparity in production costs, the subject imports are likely to
undersell the domestic like product if Commerce revokes the orders. Id. These effects would
extend beyond the market for prilled urea despite the limited domestic market segmentation
between granular and prilled urea, because some customers will switch from granular urea to
prilled if given a sufficient discount. Id. at 22-23.
Plaintiffs contend that this analysis contradicts the ITC's finding that the likely volume of
subject imports would be significant if Commerce revokes the orders, because underselling
Court No. 06-00013 Page 27
would be a significant “money losing proposition” for the subject industries if their imports
would have to be sold at a discount that would eliminate the U.S. price premium over other
markets; “the subject industries [would have] no incentive to shift sales away from other markets
to the United States.” Pls. Mem. 38, 39.
Plaintiffs' argument misinterprets the ITC's reasoning. The U.S. price premium over
other markets is based on a comparison of domestic prilled prices with prilled prices in foreign
markets. See Second Review at 21. Purchasers, though, indicate only that they may need a
discount to be induced to switch from granular urea to prilled for use in fertilizer applications.
See id. at 23 n.184. Plaintiffs would not have to discount their product to penetrate the domestic
prilled urea market, which accounts for about one-quarter of the market share. Id. at 11. In
addition, while underselling may sometimes be a short-term money-losing strategy, significant
underselling is often used “to gain market share, as occurred during the original investigation,”
and presumably would reoccur in the granular portion of the domestic urea market. Id. at 23.
The ITC's findings are therefore consistent and supported by the record.
3. Likelihood That Underselling Would Depress U.S. Prices & Plaintiffs' Claims
Further bolstering its price effects analysis, the ITC found that underselling of the subject
imports likely would depress domestic urea prices for two reasons. First, “most purchases of
solid urea are made on the spot market rather than long term contractual agreements,” which
enables the subject imports to easily and immediately compete with a substantial portion of the
domestic market, thus causing domestic urea prices to rapidly decline. Id. Second, the subject
industries could adversely affect domestic prices, despite market segmentation, because
purchasers could use prilled urea prices as “leverage” against domestic producers “to negotiate
Court No. 06-00013 Page 28
lower [domestic] granular urea prices.” Id. This negotiation process would be easily facilitated
by publications, such as Green Markets, which disseminate pricing information. Id.
Plaintiffs argue that the ITC's finding of likely significant adverse price effects is
unsubstantiated because the ITC “failed to account for forecasts ” that world prices are to rise
above 2004 price levels. Pls. Mem. 34; see also Second Review at 37 & n.40. However, the
mere fact that one study projects world urea prices to remain above 2004 prices does not
undermine the ITC's analysis. See Def.'s Conf. App. List 2. Doc. 132 (AHC's Oct. 26, 2005
Submission, Attach. 1, 104). In fact, the analyst's report projects that [[ ]]. See Def.'s Conf.
App. List 2. Doc. 132 (AHC's Oct. 26, 2005 Submission, Attach. 1, 104). The report also
demonstrates that urea from the Former Soviet Union likely would undersell the domestic like
product, despite price increases, because urea from its suppliers will remain the lowest priced
among world suppliers. See Def.'s Conf. App. List 2. Doc. 132 (AHC's Oct. 26, 2005
Submission, Attach. 1, 104). [[ ]]. The record evidence cited by Plaintiffs does not provide
substantial support for an alternative conclusion.
Nonetheless, the court questions whether underselling by the subject industries likely
would cause U.S. urea prices to decline if Commerce revokes the orders when low-priced urea
imported from the Middle East and Venezuela has not depressed domestic prices. Cf. Pls. Mem.
20. Despite the fact that imports from these nonsubject countries accounted for a substantial
portion of the overall domestic supply during the period of review and were priced lower than the
domestic like product, U.S. urea prices doubled, and the domestic industry enjoyed high profits.
See Second Review at 21 n.172 (stating that nonsubject imports account for two-thirds of U.S.
urea market), 25-26; Staff Report at Table C-2 (demonstrating that nonsubject imports from
Court No. 06-00013 Page 29
Middle East and Venezuela accounted for about 35 percent of domestic imports in 2004); Def.-
Int. App. 9. Ex. 11 (CR 118) (AHC's Posthr'g Br. Ex. 11) (showing freight-on-board prices for
Middle Eastern urea priced only slightly higher than Black Sea export prices); Def.'s Conf. App.
List 2. Doc. 132 (AHC's Oct. 26, 2005 Submission, Attach. 1, 104) (reporting that [[ ]]).
The ITC failed to explain why the subject imports likely would depress U.S. urea prices when the
nonsubject imports, in a parallel scenario, have not done so. See also Bratsk Aluminum Smelter
v. United States, 444 F.3d 1369, 1373 (Fed. Cir. 2006) ("'An affirmative injury determination
requires both (1) present material injury and (2) a finding that the material injury is "by reason
of" the subject imports.'" (quoting Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed.
Cir. 1997)) (emphasis in original)); id. at 1375.
Where commodity products are at issue and fairly traded, price competitive, non-
subject imports are in the market, the Commission must explain why the
elimination of subject imports would benefit the domestic industry instead of
resulting in the non-subject imports' replacement of the subject imports' market
share without any beneficial impact on domestic producers.
Id. at 1373; cf. id. at 1374. Due to the ITC's “total failure to consider or discuss record evidence”
which “provides significant support for an alternative conclusion,” the court remands the ITC's
finding for further analysis of whether the subject imports likely would depress U.S. urea
prices.21 See Allegheny Ludlum Corp. v. United States, 24 CIT 452, 479, 112 F. Supp. 2d 1141,
1165 (2000). On remand, the ITC must make a “'rational connection between the facts found and
the choice made.'” Bando, 16 CIT at 136, 787 F. Supp. at 227 (quoting Bowman, 419 U.S. at
285, 95 S. Ct. at 441).
21
Plaintiffs also contend that the subject industries already sell their urea on the world
market without adversely impacting world prices. However, Plaintiffs cited no record evidence
to bolster their claim, so their argument is waived. See USCIT R. 86.1.
Court No. 06-00013 Page 30
C. Likely Impact on the Domestic Industry
After taking into account its prior investigations, the domestic industry's profits, the
effects of natural gas prices on U.S. production, among other economic factors, and considering
the ITC's prior conclusions that the volume of the subject imports likely would be significant and
that the price effects on the domestic like product likely would be adverse, the ITC found that the
subject imports likely would have a significant adverse impact on the domestic industry if
Commerce revokes the AD orders. Second Review at 24-27; see also § 1675a(a)(1) & (4).
In the original 1987 investigation, the ITC found that the subject imports caused a
significant adverse impact on the domestic industry due to a significant decline in the domestic
industry's profitability from 1985 to 1986, a sudden decline in the domestic industry's capacity
utilization, and a drop in the ratio of operating income to net sales from 1984 to 1986. Second
Review at 24 (citing Original Determination at 9; Staff Report at Table I-1). Likewise, in the first
sunset reviews, the ITC concluded that the subject imports likely would have a significant
adverse impact on the domestic industry if Commerce revoked the orders because “the volume
and price effects of the cumulated subject imports would” adversely impact the domestic industry
and likely cause it to lose market share. Id. at 25 (citing First Review at 22). However, in the
same reviews, the ITC also found that the domestic industry's profits “rebounded” since the
original investigation and that the domestic industry would not be vulnerable to material injury
despite recent declines in U.S. urea prices. Id. While the ITC again does not explain how these
past findings relate to the current period of review, its discussion implies that the subject imports
likely would adversely impact the domestic industry again if Commerce revokes the orders.
Court No. 06-00013 Page 31
In contrast to the findings in the first sunset reviews, in these reviews, Commissioners
Koplan and Lane of the majority concluded that the domestic industry would be vulnerable to
material injury despite its recently high profits, rising domestic urea prices, and increased
productivity ) an economic climate more favorable than that portrayed by the ITC in the first
sunset reviews. Id. at 25-26. To arrive at this conclusion, the Commissioners noted that
domestic plants closed and that one domestic producer declared bankruptcy due to increases in
natural gas prices, indicating that the U.S. urea industry would be weakened further if Commerce
revokes the orders because the industry is already vulnerable. Id. However, the Commissioners
do not explain how they could reach this finding in light of the ITC's conclusion in the first
reviews. Further, they fail to explain how they could find that high natural gas prices have
weakened the industry when the record evidence indicates that profits increased despite plant
closures and that domestic urea prices have risen during the period of review more quickly than
raw material costs. See Staff Report at Table III-6; Table V-1; Table III-2. The ITC cites no
evidence demonstrating that the plant closures are indicative of overall industry vulnerability,
especially as such closures appear to have increased the efficiency and profitability of the
industry as a whole.
To bolster its likely impact analysis, the ITC also concluded that the domestic industry's
sales, production, market share, and capacity fell, and that the industry operated at lower rates of
capacity utilization in 2004 than 1999. Second Review at 25-26. However, data for the domestic
industry's sales, production capacity, and capacity utilization rates do not substantiate these
conclusions. See Staff Report at Table I-1, Table III-6. For example, when the ITC examined the
industry's capacity utilization rates, it referenced only the data points for 1999 and 2004, which
Court No. 06-00013 Page 32
support its conclusion, but ignored the rates for all other years, which when examined together
reveal no discernible trend. The ITC's conclusory findings lack evidentiary support. The ITC
must look at the evidence as a whole and not draw conclusions from isolated points of data while
ignoring the context of the industry's business cycle. See § 1675a(a)(4); USX Corp. v. United
States, 11 CIT 82, 84, 655 F. Supp. 487, 489 (1987); see also Atl. Sugar, Ltd., 744 F.2d at 1562
(holding that agency must consider entire record as a whole).22
The court therefore finds the ITC's conclusion that revocation of the orders would render
the domestic industry vulnerable to material injury devoid of the legally required explanation to
support its finding and remands the issue to the ITC for elaboration.
VII. Conclusion
For the reasons discussed above, it is hereby
ORDERED that Plaintiffs' motion for judgment on the agency record is granted in part
and denied in part and that the case is REMANDED to the International Trade Commission for
further proceedings not inconsistent with this opinion. Specifically, it is
ORDERED that the ITC's finding of an overlap of competition between solid and prilled
urea is SUSTAINED; it is further
ORDERED that in its examination of whether the likely volume of subject imports would
prove significant if the antidumping orders in question are revoked, the ITC provide more
22
Plaintiffs contend that Chairman Pearson failed to explain how the likely impact on the
domestic industry would be adverse if Commerce revokes the orders since he found the domestic
industry currently not vulnerable due its high profits and solid returns on investment in 2004.
Pls. Mem. 36; see also Second Review at 26 n.217. However, Plaintiffs themselves correctly
admit that this fact does not preclude an affirmative determination. See Siderca S.A.I.C., 29 CIT
at __, 391 F. Supp. 2d at 1369; Pls. Mem. 36.
Court No. 06-00013 Page 33
rigorous analysis of its assessment of the effects of third-country barriers; it is further
ORDERED that the ITC address the deficiencies in its likely price effects argument,
particularly the likely price effects of subject imports in light of the already substantial presence
of low-cost non-subject imports in the domestic market; it is further
ORDERED that the ITC reassess the likely impact of subject imports on the domestic
industry to account for the difference between the first sunset reviews' findings and the findings
of the current review within the context of the domestic industry's recent improved performance;
and it is further
ORDERED that the ITC shall have until November 26, 2007 to file its remand results
with the Court. Plaintiffs and Defendant-Intervenors shall file their respones no later than
December 28, 2007.
August 28, 2007 /s/ Judith M. Barzilay
Dated:_____________________ ______________________
New York, NY Judge
ERRATA
Nevinnomysskiy Azot, et al. v. United States, Court No. 06-00013, Slip Op. 07-130, Public
Version, dated August 28, 2007.
Page 28: 9th line from the top of page, sentence beginning “ The report also demonstrates
that urea from the Former Soviet Union likely . . .” remainder of sentence should
be bracketed so that sentence now reads: “ The report also demonstrates that urea
from the Former Soviet Union likely [[ ]].”
Sentence immediately following that was previously bracketed should read as
follows: “Therefore, if Commerce revokes the orders, U.S. prices may decline
sooner than 2010 and by more significant margins than analyst projections.”
September 10, 2007