Nucor Fastener Div. v. United States , 2013 CIT 65 ( 2013 )

Slip Op. 13-65
UNITED STATES COURT OF INTERNATIONAL TRADE
NUCOR FASTENER DIVISION,
Plaintiff,
Before: Richard W. Goldberg,
v. United States Judge
Court No. 09-00531
UNITED STATES, PUBLIC VERSION
Defendant,
and
PORTEOUS FASTENER CO., HEADS & THREADS
INTERNATIONAL, LLC, SOULE, BLAKE &
WECHSLER, INC., INDENT METALS LLC, XL
SCREW CORPORATION, BOSSARD NORTH
AMERICA, HILLMAN GROUP, FASTENAL CO.,
FASTENERS AND AUTOMOTIVE PRODUCTS,
BRIGHTON-BEST INTERNATIONAL, INC., and
BRIGHTON-BEST INTERNATIONAL (TAIWAN)
INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Defendant’s remand redetermination is sustained and plaintiff’s request for a final investigation
is denied.]
Dated: May 24, 2013
Daniel B. Pickard, Wiley Rein LLP, of Washington, DC, argued for plaintiff. With him on the
brief were Alan H. Price and Maureen E. Thorston.
Mary J. Alves, United States International Trade Commission, of Washington, DC, argued for
defendant. With her on the brief were James M. Lyons, General Counsel, and Neal J. Reynolds,
Assistant General Counsel for Litigation.
Matthew T. McGrath, Barnes Richardson & Colburn LLP, of Washington, DC, argued for
defendant-intervenor. With him on the brief was Stephen T. Brophy.
Court No. 09-00531 Page 2
Goldberg, Senior Judge: Plaintiff Nucor Fastener Division (“Nucor”), a domestic
producer of nuts, bolts, and other fasteners, seeks judicial review of the International Trade
Commission’s (“the ITC” or “the Commission”) remand redetermination from its preliminary
antidumping and countervailing duties investigations into Certain Standard Steel Fasteners from
China and Taiwan, USITC Pub. 4109, Inv. Nos. 701-TA-472 and 731-TA-1171-1172 (Nov.
2009) (“ITC Pub. 4109”). On remand, Nucor argues that the ITC did not properly address the
concerns of the Court of International Trade when it reaffirmed its findings that the data it used
to determine that Chinese and Taiwanese importers were not dumping was comprehensive and
that Producer A was properly included into its analysis because it was, indeed, a domestic
producer.
For the reasons discussed below, the ITC’s remand redetermination is sustained and
Nucor’s request for a final investigation is denied.
BACKGROUND
On September 23, 2009, petitioner Nucor Fastener Division of St. Joseph, Indiana, filed a
petition with the ITC alleging that U.S. producers of certain standard steel fasteners (“CSSF”)
were materially injured and threatened with material injury by reason of sales at less than fair
value (“LTFV”) and subsidized imports of CSSF from China and sales at LTFV of CSSF
imported from Taiwan. The ITC initiated both a countervailing duty investigation and an
antidumping duty investigation.
In preliminary antidumping and countervailing duty determinations, the ITC determines
whether there is a reasonable indication that a domestic industry is materially injured or
threatened with material injury, or that the establishment of an industry is materially retarded, by
reason of the allegedly unfairly traded imports. 19 U.S.C. §§ 1671(b)(a), 1673b(a) (2006). To
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reach that determination, the ITC weighs the evidence before it and determines whether: “(1) the
record as a whole contains clear and convincing evidence that there is no material injury or threat
of such injury; and (2) no likelihood exists that contrary evidence will arise in a final
investigation.” Am. Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed. Cir. 1986).
In determining whether the domestic industry has suffered material injury or faces the
threat of such injury, the ITC considers factors such as the volume of subject imports, the subject
imports’ effect on prices for the domestic like product, and the subject imports’ impact on
domestic producers of the domestic like product in the context of U.S. operations. 19 U.S.C. §
1677(7)(B)(i). The ITC considers all relevant economic factors that impact the U.S. industry,
with no single factor being dispositive. Id. § 1677(7)(C)(iii). All factors are considered within
the context of the business cycle and competitiveness of the affected industry. Id.
On November 9, 2009, after conducting a preliminary investigation, the ITC found: (1)
the record as a whole contained no reasonable indication of material injury by reason of
cumulated subject imports from China and Taiwan; and (2) the record as a whole contained no
reasonable indication of a threat of material injury by reason of cumulated subject imports. See
generally ITC Pub. 4109. The ITC based its determination on the following factors: the
conditions of competition and the business cycle (including demand conditions, supply
conditions, raw material costs, and interchangeability), the volume of cumulated subject imports
from China and Taiwan, the price effects of the cumulated subject imports, and the impact of the
cumulated imports. Id. at 38–45. The ITC’s determination that no threat of material injury
existed was based on its consideration of likely subject import volumes, likely price effects, and
likely impact. Id. at 41–50.
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Although the ITC found that the cumulated volume of subject imports from China and
Taiwan was significant in absolute terms and that subject imports were pervasively undersold,
the ITC determined that there was no overall correlation between the large and steady volume of
subject imports and the changes in the domestic industry’s conditions and prices. Id. at 36–45.
First, between 2006 and 2008, as demand somewhat declined, the ITC did not observe any
significant changes that would indicate that subject imports were impinging upon the domestic
industry’s market share. Id. at 36–38. Rather, market share across the domestic industry, subject
imports, and imports from countries outside of China and Taiwan remained stable. Id. Second,
the ITC did not observe any negative price effects, as domestic industry prices tended to remain
at or above their initial-period prices. Id. at 38–41. Moreover, the domestic industry’s “cost of
goods sold as a share of net sales,” the ratio the ITC commonly uses to analyze price
suppression, was relatively low and stable between 2006 and 2008. Id. at 40–41.
Notwithstanding small declines in demand, a significant subject-import market share, and
significant underselling from 2006 to 2008, the ITC found increased profitability and solid
performance. Id. at 36–45.
Even during the 2009 economic downturn, which saw noticeable declines in demand by
consumers of CSSF, the ITC determined that slight declines in domestic market share (24.5
percent in 2008 to 23.3 percent in 2009) were the result of an increase in market share by non-
subject imports as opposed to those from China and Taiwan. Id. at 38. With respect to price
effects, the cost of goods to net sales ratio was higher in 2009 as a result of price declines in
response to the recession, not as a result of the volume of subject imports. Id. at 41.
Underselling was not any more pervasive in 2009 than in any prior years. Id. Although lower
sales and profitability ensued, as expected, from the recession, the domestic industry managed to
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earn $3.8 million in operating income ($11.4 million in 2008) and maintained a positive 5.8
percent operating margin (12.2 percent in 2008). Id. at 24–45. Thus, the ITC found that the
record as a whole contained clear and convincing evidence of no reasonable indication of
material injury by reason of cumulated subject imports of CSSF from China and Taiwan and no
likelihood that contrary evidence would be discovered in any final investigation. Id. at 9, 36–45.
In considering whether there was any reasonable indication of a threat of material injury
to the domestic producers, the ITC did not find a likelihood of substantially increased imports
from China and Taiwan. Id. at 47. Although the Chinese and Taiwanese producers of CSSF had
excess capacity, were export-oriented, and undersold CSSF in the U.S. market, the record data
showed that their market share remained relatively stable. Id. at 47–48. The ITC also found that
the industries in China and Taiwan were unlikely to change very much in the near future. Id. at
48–49. These factors, along with the fact that subject import pricing did not stimulate demand
for significant additional subject imports during the investigation period, led the ITC to
determine that subject imports were unlikely to constitute a threat of material injury to domestic
producers. Id. at 49.
On May 14, 2010, Nucor moved for judgment on the agency record pursuant to USCIT
Rule 56.2, challenging the ITC’s preliminary determination results. Br. in Support of Nucor
Fastener Division’s Rule 56.2 Mot., D.E. 32, at 1 (“Pl.’s Mem.”). On August 11, 2011, this court
granted in part and denied in part Nucor’s motion. Nucor Fastener Div. v. United States, 35 CIT
__, 791 F. Supp. 2d 1269 (2011). The court reversed and remanded back to the ITC the
following two issues: (1) the ITC’s treatment of its import data as comprehensive; and (2) the
ITC’s unqualified reliance on Producer A’s (which identified itself as a U.S. producer of
domestic like product) questionnaire response. Id. at __, 791 F. Supp. 2d at 1292.
Court No. 09-00531 Page 6
The court agreed with Nucor’s challenge of the ITC’s description of the importer
questionnaire data as comprehensive. It identified “three potential explanations” for the ITC’s
conclusion and argued that each was illogical. Pl.’s Mem. at 26. First, Nucor questioned the
ITC’s assertion that the “responses ultimately received from [the thirty importers] represented
the large majority of known CSSF imports from January 2006 and June 2009.” Id. The ITC
explained that it compared the importers responsible for the thirty responses “to its initial list of
78 firms that appeared to be the major importers of all types of steel fasteners covered by these
[Customs] subheadings.” Mem. of Def. U.S. ITC in Opp’n to Pl.’s Mot. for J. on the Agency R.,
D.E. 45, at 30–31 (“Def.’s Mem.”). The ITC was thus able to “determine that they had received
data from the large majority of significant known imports of fasteners from China and Taiwan”
during the period of interest, which indicated that they had proper coverage for importers who
likely imported CSSF. Id. at 31. The court called the ITC’s contention “entirely post hoc,”
pointing out that the ITC “cite[d] no record evidence of any such comparison.” Nucor, 35 CIT at
__, 791 F. Supp. 2d at 1281. Moreover, the ITC’s argument was undermined by its assertion that
five of the six relevant Customs subheadings “contain[] large amounts of fasteners not subject to
these investigations.” Id. The court also questioned whether the ITC meant “significant known
importers” as opposed to “significant known imports,” but noted that the ITC’s response was
unclear. Id.Second, Nucor questioned how the thirty questionnaire responses demonstrated that a
small number of firms accounted for a significant share of CSSF imports, asserting that the data
merely showed that a small number of firms accounted for a large share of “reported” imports.
Pl.’s Mem. at 27. The ITC defended its views with staff conference testimony that “this industry
involved a limited number of large importers.” Def.’s Mem. at 31. However, the court
Court No. 09-00531 Page 7
questioned the ITC’s response because it had not provided any record evidence even suggesting
an overlap between large importers that responded to the questionnaire and the large reporters
referenced at the staff conference. Nucor, 35 CIT at __, 791 F. Supp. 2d at 1281–82. Moreover,
the ITC did not explain how the sample of responding importers was demonstrative of the
“universe of relevant importers.” Id. at __, 791 F. Supp. 2d at 1282.
Third, Nucor questioned the ITC’s use of importer data as comprehensive, considering
that a comparison of U.S. importer responses to foreign producer responses indicated that
reported exporter volume exceeded the reported importer volume by a significant percentage.
Pl.’s Mem. at 27–30. The ITC cited a rough equivalence in the values because, although
reported imports were more inclusive than reported exports in Taiwan, the opposite was true in
China, thus resulting in “reported exports of subject merchandise to the United States in
collective quantities that are relatively similar to the quantities of subject merchandise imports
collectively reported by [domestic importers].” ITC Pub. 4109 at 7. The court rejected this
reasoning because the ITC offered “no explanation for how undercounting the exports of one can
remedy undercounting the imports of the other.” Nucor, 35 CIT at __, 791 F. Supp. 2d at 1282.
Moreover, the ITC did not provide any methodologies to support its assertion that it would arrive
at the same conclusion regardless of which combination of data sets it examined. Id.In sum, the court concluded that the ITC had failed to provide a “reasoned basis” for
treating and relying on incomplete data as comprehensive, calling the ITC’s approach a “casual
conflation of a limited sample with the larger population from which that sample is drawn.” Id.The basis upon which the ITC was required to draw its conclusion “must include at least a
candid recognition of and response to inherent limitations.” Id. at __, 791 F. Supp. 2d at 1285.
Therefore, the ITC’s treatment of the data amounted to a “complete failure ‘to consider an
Court No. 09-00531 Page 8
important aspect of the problem.’” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
The court also remanded on the issue of the ITC’s reliance on Producer A’s response and
inclusion as a domestic CSSF importer. Nucor had challenged the ITC’s inclusion of four firms
that reported producing CSSF and argued that one of these firms (Producer A) did not produce
the domestic like product (CSSF) and should not be included as a member of the domestic
industry. Nucor claimed that Producer A’s response was unreliable because the response
suggested significant confusion. Pl.’s Mem. at 12–15, 17. For example, Producer A classified
the same fasteners as standard and nonstandard. Moreover, when asked whether it “produce[d]
other products on the same equipment and machinery used in the production of CSSF,” Producer
A answered affirmatively but responded that CSSF accounted for 100 percent of its products. Id.Subsequent correspondence between the ITC and Producer A showing that Producer A staff
were not familiar with the ITC’s definitions of CSSF and other fastener products also suggested
that the staff’s knowledge and ability to respond to the questionnaires was limited. Although the
ITC had asserted that it was “authorized to weigh evidence and resolve conflicts in the data,”
Def.’s Mem. at 18, the court found that the ITC did not demonstrate that it even considered any
discrepancies. Nucor, 35 CIT at __, 791 F. Supp. 2d at 1287. Therefore, there was no rational
basis for the unqualified inclusion of Producer A in the ITC’s analysis. Id.On December 7, 2011, on remand, the ITC reaffirmed all of the findings from its original
negative preliminary determinations because neither of these remanded issues played more than
a small role in its overall analysis and determinations. Certain Standard Steel Fasteners from
China and Taiwan, USITC Pub. 4297, Inv. Nos. 701-TA-472 and 731-TA-1171 (Preliminary)
Court No. 09-00531 Page 9
(Remand) (Dec. 2011), D.E. 91, at 11 (“Remand Results”).1 It again concluded that there is no
reasonable indication that an industry in the United States is materially injured or threatened with
material injury by reason of subject CSSF imports from China and Taiwan. Id.STANDARD OF REVIEW
“The court will sustain the Department’s determination upon remand if it complies with
the court’s remand order, is supported by substantial evidence on the record, and is otherwise in
accordance with law.” Jinan Yipin Corp. v. United States, 33 CIT __, __, 637 F. Supp. 2d 1183,
1185 (2009) (citing 19 U.S.C. § 1516(b)(1)(B)(i) (2000)).
DISCUSSION
I. The record supports the ITC’s using its import questionnaire data as
“comprehensive”
The court concluded that the ITC had failed to provide a “reasoned basis” for treating and
relying on incomplete data as comprehensive, calling the ITC’s approach a “casual conflation of
a limited sample with the large population from which the sample is drawn.” Nucor, 35 CIT at
__, 791 F. Supp. 2d at 1283. The court noted that the ITC’s conclusion “must include at least a
candid recognition of and response to inherent limitations” in its data and methodology. Id. at
__, 791 F. Supp. 2d at 1285. Therefore, the ITC’s treatment of the data amounted to a “complete
failure ‘to consider an important aspect of the problem.’” Id. (quoting Motor Vehicle Mfrs.
Ass’n, 462 U.S. at 43 (1983)).
On remand, after comparing the importer questionnaire data to Customs’s import data,
other record data concerning the relative size and number of importers in the industry, and
foreign producer questionnaire data, the ITC again deemed importer questionnaire data
1
The Remand Results are also available online at http://www.usitc.gov/publications/701_731/pub4297.pdf.
However, because the Remand Results published online have different pagination from those filed with the court,
the court notes that all page numbers cited by the court refer to the Remand Results filed with the court. They are
available as part of the public record, docket entry number 91.
Court No. 09-00531 Page 10
comprehensive and reliable. For the reasons stated below, the court sustains the Commission’s
remand determinations.
A. The Record Supports Using Questionnaire Data on CSSF Imports from Subject and
Non-Subject Countries
The ITC argues that its use of importer questionnaire data is preferred over Customs’s
import data because the merchandise covered by the investigations could be classified under any
one of six statistical reporting numbers under the Harmonized Tariff Schedule of the United
States (“HTSUS”), with five out of the six numbers representing “basket” categories containing
numerous fasteners not subject to the investigations. Remand Results at 22–25. Moreover,
using only the sixth number would underestimate the volume of subject imports. Id. at 24. The
ITC states that Nucor itself has also counseled against using Customs’s import data, urging the
ITC to use importer questionnaire responses instead. Id. at 23. Additionally, the ITC
emphasizes that the Federal Circuit has given it broad discretion in making methodological
choices, and has routinely upheld the ITC’s use of importer questionnaire data, that need not be
complete. Id. at 22 (citing U.S. Steel Grp. v. United States, 96 F.3d 1352, 1357, 1361–62 (Fed.
Cir. 1996); Comm. for Fair Coke Trade v. United States, 28 CIT 1140, 1163 (2004); Sensient
Techs. Corp. v. United States, 28 CIT 1513, 1520–22 (2004).
Second, the ITC defends the process it used to collect the importer questionnaire data.
After obtaining Commerce’s official statistics (from its “Interactive Tariff and Trade DataWeb”)
on imports under the six HTSUS statistical reporting numbers that Nucor identified, the ITC
obtained specific import entry information for U.S. imports from subject and non-subject
countries for the six statistical reporting numbers (from Customs Net Import File CL202) and
issued importer (and foreign producer) questionnaires to firms that accounted for a significant
portion of imports (or exports) of all fastener types to the United States. Remand Results at 25–
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26. Using the data it obtained from the file, ITC staff separated the importers into three groups
(“Groups A, B, and C”). Id. at 27. Group A consisted of firms representing greater than one
percent of total imports of fasteners from China and Taiwan under statistical reporting number
7318.15.2030, which Nucor identified as most closely resembling CSSF, in 2008 or January
through June 2009. Id. at 26–27. Group B included firms representing greater than one percent
of total imports of fasteners from China and Taiwan under the combined statistical reporting
numbers (7318.15.2030, 7318.15.2055, 7318.15.2065, 7318.15.8065, 7318.15.8085, and
7318.16.0085), which covered subject and non-subject CSSF, during the same time period. Id. at
28. Group C was comprised of firms that imported greater than one percent of the total imports
of the combined statistical reporting numbers from non-subject countries during the same period.
Id.Although the ITC acknowledges that it never obtains perfect data on imports, foreign
producers, or the domestic industry in any investigation, it states that it routinely relies on this
data to make injury determinations because the statute, 19 U.S.C. §§ 1671b(a)(1)–(2), 1671b(f),
1673b(a)(1)–(2), 1673b(f), requires decisions to be made within a relatively short forty-five day
period based on information available at the time. Remand Results at 26–27. Moreover, the ITC
emphasizes that each of the steps taken is consistent with its regular practice in preliminary
injury investigations. Id. at 25–27.
Nucor argues that “the record did not bear out the [ITC’s] description of its
methodology,” pointing out that individual importers responsible for certain goods from China
and Taiwan during the relevant time periods were not included in the ITC’s questionnaire
mailing list, while importers responsible for minimal or no imports from China and Taiwan were
included. Nucor Fastener Div.’s Remand Comments, D.E. 102, at 16–19 (“Pl.’s Remand
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Comments”). Moreover, Nucor points out “the still greater oddity of questionnaires being sent to
companies that did not meet the criteria.” Id. at 19. In response, the ITC refers back to its
extensive explanations regarding its methodologies for sending out the questionnaires in its
Remand Results, pointing out that it does not ordinarily specify whether and why it sent
questionnaires to specific firms. Def. U.S. ITC’s Reply to Nucor’s Response, D.E. 115, at 11
(“Def.’s Reply to Remand Comments”). Moreover, the ITC notes that Nucor did not inquire
about any of these specific firms at the remand proceedings and therefore failed to exhaust its
administrative remedies on this issue. Id. at 12. Accordingly, there is no need for another
remand for the ITC to explain the status of additional firms.
Although the ITC acknowledged that the data is not complete and that some
discrepancies existed, id. at 43, the court agrees with the ITC that the data was sufficiently
adequate to rely upon for purposes of the investigation.
B. There Is No Need to Proceed to a Final Investigation on the Import Data Issue
In its Remand Comments, Nucor continues to assert that because the importer
questionnaire data was “spotty and unreliable,” additional import volumes and pricing data might
lead to a finding of greater underselling and import penetration than originally found. Pl.’s
Remand Comments at 39–40. Defendant-Intervenors respond that, although the import data may
not be comprehensive, the ITC has collected enough import data to reach a negative injury
determination and there is no need to proceed with a final investigation. Def.-Ints.’ Comments
on the Remand Det. of the U.S. ITC, D.E. 100, at 5 (“Def.-Ints.’ Remand Comments”). The ITC
correctly maintains that in preliminary investigations, the standard is not whether any additional
data could be collected in any final investigations, but instead whether the record as a whole
indicates a likelihood that contrary evidence leading to a different outcome could be obtained.
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Remand Results at 44 (citing Co-Steel Raritan, Inc. v. United States, 357 F.3d at 1294, 1311,
1314–17) (Fed. Cir. 2004) (emphasis in original).
In its original views, the ITC found that regardless of which data sets it reviewed, it still
arrived at the same conclusion. Id. at 44. On remand, the ITC again asserts that it would reach a
negative injury determination even if it relied on the data set that showed the greatest number of
cumulated subject imports. Id. at 45. Moreover, the ITC’s findings regarding large but steady
subject import market share, steady domestic industry market share, no significant price
depression or suppression, and a profitable domestic industry despite significant underselling
would also remain the same. Id. Therefore, absent a reasonable indication of material injury or
threat thereof, there is no need to proceed with a final investigation to gather more
comprehensive data that will yield the same results. Id. at 46.
Nucor’s arguments are unavailing. The court remanded the issue of whether the record
supported the ITC’s import questionnaire data as comprehensive because the ITC had failed to
acknowledge the inherent limitations in its methodology and thus had failed to consider a critical
aspect of the problem. In its remand results, the ITC provided a detailed explanation of its
methodology, including why it chose to use importer questionnaire data over Customs data, how
it collected the data, and how it analyzed the data. Vitally, the ITC admitted that it never obtains
perfect data on imports, foreign producers, or the domestic industry in any investigation, given
the constraints of the statute (19 U.S.C. §§ 1671b(a)(1)–(2), 1671b(f), 1673b(a)(1)–(2), 1673b(f))
and its forty-five day limitation.
Nucor’s assertions regarding the ITC’s failure to include certain firms in its analysis and
the ITC’s failure to obtain perfect coverage in its samples miss the point of the court’s remand
instructions—to acknowledge that the ITC’s investigatory methods were imperfect. The ITC has
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gone above and beyond in that regard, thereby nullifying any need to proceed with a final
investigation. The court therefore sustains the ITC’s remand redetermination that the record
supports using questionnaire data on imports into the United States of CSSF from subject and
non-subject countries.
II. The ITC’s Reliance on Producer A’s Questionnaire Response and Inclusion of
Producer A as a Domestic Producer Was Not Unreasonable
Although the ITC had asserted that it was “authorized to weigh evidence and resolve conflicts in
the data,” the court pointed out that the ITC did not properly show that it even considered any
discrepancies. Nucor, 35 CIT at __, 791 F. Supp. 2d at 1287. Therefore, there was no rational
basis for the unqualified inclusion of Producer A in the ITC’s analysis. Id.The ITC again affirmed its findings that Producer A was properly included as a producer
of domestic like product. For the reasons stated below, the court sustains the ITC’s remand
redetermination.
A. The Record Supports Inclusion of Producer A as a Domestic Producer of CSSF
The ITC argues that the record supports the inclusion of Producer A as a domestic
producer for the following reasons. First, Producer A certified in its questionnaire response that
it is a producer of the domestic like product CSSF. Remand Results at 11. Although the court
concluded that Producer A appeared confused about the scope of the investigations, the ITC
argues that confusion as to scope is unlikely because Producer A’s officials candidly admitted
that they had not read the instructions at the time they filed the initial questionnaire response and
later submitted an amended questionnaire response with revised answers to several questions
pertaining to numerical data. Id. at 13–17. Second, the statute defines the domestic industry as
“the producers as a whole of a domestic like product or those producers whose collective output
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of a domestic like product constitutes a major proportion of the total domestic production of the
product.” Id. at 11 (quoting 19 U.S.C. § 1677(4)(1)).
Nucor argues that Producer A makes only “Product X” (note: the remand comments have
redacted the name of the product), which falls outside of the scope of the investigations. Pl.’s
Remand Comments at 37–38. Moreover, the court faulted Producer A for classifying the same
fasteners as both standard and nonstandard (within scope and outside of scope). Nucor, 35 CIT
at __, 791 F. Supp. 2d at 1286. In response, the ITC argues that Producer A’s statement that it
produces fasteners used for a certain purpose (outside of scope) does not indicate that it is not a
producer of CSSF because Producer A reported revised allocations for U.S. shipments of CSSF
and non-CSSF producers upon clarification with the ITC and its previous responses were given
at a point when Producer A’s officials had not read the instructions or coordinated with one
another. Remand Results at 15–16.
Finally, the ITC argues that it is entitled to rely on a firm’s certified statements about its
own internal operations and to weigh evidence and resolve conflicts in the data. Id. at 11, 17.
Despite Nucor’s different readings of the scope language and its showing that Producer A did not
revise its answer to every question in its amended response, the ITC found that the record as a
whole warrants relying on Producer A’s certified statements that it produced at least some CSSF
and therefore including it as a domestic producer. Id. at 17.
B. Producer A accounts for such a small portion of domestic CSSF that its inclusion
will not meaningfully affect the data, data trends, or the ITC’s causation analysis
On remand, the ITC explains that because Producer A accounts for such a small fraction of
domestic CSSF production, inclusion (or exclusion) would not change the outcome of the
negative injury determination. Id. at 18. It points out that even the court acknowledged that the
market share and operating margin data may suggest that the ITC might have reached the same
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negative preliminary injury determinations had the agency excluded, qualified, or questioned all
of Producer A’s data. Id. (referring to Nucor, 35 CIT at __, 791 F. Supp. 2d at 1287, n.30).
Nucor argues that including Producer A in the domestic industry would “meaningfully alter[] the
picture of the U.S. industry.” Pl.’s Remand Comments at 39. After considering the record data
with and without Producer A in the domestic industry, the ITC found that Producer A’s presence
or absence had no meaningful impact on the data or trends (e.g., domestic industry production,
shipments, operating income, operating margins) or causation analysis (e.g., stable market
shares, no effect on underselling or lack of significant price depression). Remand Results at 18.
Therefore, the ITC concluded that there is no need to proceed with a final investigation.
Nucor’s arguments are unconvincing. The court remanded this issue because the ITC did
not properly show that it even considered any discrepancies in its questionnaire responses.
Nucor points specifically to the fact that Producer A submitted a response that contained
conflicting answers. In its remand results, the ITC addressed Producer A’s original response,
explaining that it was completed prior to Producer A’s officials having read the directions or
conferred with one another. Moreover, having noted the inconsistencies in Producer A’s
response, the ITC requested that Producer A submit an amended questionnaire response with
revised answers to several questions containing numerical data. Because the ITC has
demonstrated that it did indeed consider discrepancies in Producer A’s original questionnaire
response, the ITC has adequately addressed the court’s remand instructions. There is no need for
any further investigation on this issue. The court therefore sustains the ITC’s redetermination on
remand that Producer A was properly included in its import data as a domestic producer of
CSSF.
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CONCLUSION AND ORDER
Upon consideration of the remand redetermination filed by the ITC, the comments filed
by Plaintiff and the Defendant-Intervenors, the reply filed by the Defendant, all other pertinent
papers, and oral argument, it is hereby
ORDERED that the ITC’s remand redetermination is SUSTAINED; it is further
ORDERED that judgment is entered for the United States.
/s/ Richard W. Goldberg
Richard W. Goldberg
United States Judge
Dated: May 24, 2013
New York, N.Y.