                            Slip Op. 08 - 3

            UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - -x
MITTAL STEEL ROMAN and SC SILCOTUB     :
S.A.,
                                       :
                          Plaintiffs,
                                       :
                 v.
                                       :
THE UNITED STATES OF AMERICA,
                                       :         Consolidated
                          Defendant,             Court No. 06-00173
                                       :
               -and-
                                       :
UNITED STATES STEEL CORPORATION,
                                       :
               Intervenor-Defendant.
                                       :
- - - - - - - - - - - - - - - - - - - -x

                          Memorandum & Order

[Final sunset-review determination of U.S. Interna-
 tional Trade Commission affirmed; action dismissed.]

                                                 Decided: January 11, 2008

     Arent Fox LLP (John M. Gurley, Nancy A. Noonan and Diana
Dimitriuk-Quaia) for the plaintiffs.

     James M. Lyons, General Counsel, Andrea C. Casson,
Assistant General Counsel for Litigation, and Rhonda M. Hughes,
U.S. International Trade Commission, for the defendant.

     Skadden, Arps, Slate, Meagher &              Flom LLP (Robert     E.
Lighthizer, John J. Mangan, James C.              Hecht and Stephen    P.
Vaughn) for the intervenor-defendant.


           AQUILINO, Senior Judge:         This action consolidates com-

plaints   filed   on   behalf   of   the    above-encaptioned   plaintiff
Consolidated
Court No. 06-00173                                                                       Page 2


Romanian enterprises.             Each contests the final determination of

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

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

revocation       of     the    antidumping-duty          order        on    small    diameter

carbon     and    alloy       seamless    standard,        line,      and    pressure     pipe

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

to continuation or recurrence of material injury to an industry

in the United States within a reasonably foreseeable time.                                 See

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


                                              I

              This determination was by operation of the law when

three      commissioners        were     counted    in     its    favor      and    an   equal

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

commissioners, four exercised their discretion not to cumulate

imports      from      Romania    with     imports       from    the       Czech    Republic,

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

those four, only one made an affirmative determination as to

Romania.         The    other    two     in   favor   were       by    commissioners       who


       1
           Referred to hereinafter as ITC record document (“R.Doc”)
231.
Consolidated
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cumulated imports from Romania with all of the other countries

subject to the review, including the Czech Republic and South

Africa.


           The plaintiffs contend that those two commissioners

     erred as a matter of law when they based their
     decision to maintain the order on Romania (and all of
     the subject countries) using cumulated data . . ..
     The Commission determined not to cumulate imports from
     Romania with any other subject country, as reflected
     by the decision of four of the Commissioners.
     Accordingly, [those two commissioners] should have
     made their injury determination on the same, un-
     cumulated basis.


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

Commissioner   Aranoff’s   determination   that   revocation   of   the

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

lead to continuation or recurrence of material injury to the

domestic industry is not supported by substantial evidence on

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

three commissioners counted in the negative, as well as upon

perceived internal inconsistencies in the Aranoff determination

itself.2

     2
       Given the quality of plaintiffs’ written submissions, as
well as those in opposition, plaintiffs’ motion for oral
argument can be, and it hereby is, denied.
Consolidated
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                                     A

           The ITC is required to make a final determination of

whether   a   domestic    industry    is    materially     injured,       or   is

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

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

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

publication     of   an   affirmative      determination    and    subsequent

imposition of an antidumping-duty order, the Commission conducts

a review to determine whether revocation of such order would be

likely to lead to continuation or recurrence of dumping and

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

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


           (A) its prior injury determinations, including
      the volume, price effect, and impact of imports of the
      subject merchandise on the industry before the order
      was issued . . .,

           (B) whether any improvement in the state of the
      industry is related to the order . . .,

           (C) whether    the   industry   is  vulnerable                to
      material injury if the order is revoked . . ., and

           (D) in an antidumping proceeding under section
      1675(c) . . ., the findings of the administering
      authority regarding duty absorption under section
      1675(a)(4) . . ..


19 U.S.C. §1675a(a)(1).      Additionally,
Consolidated
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       the Commission may cumulatively assess the volume and
       effect of imports of the subject merchandise from all
       countries with respect to which . . . [5-year reviews]
       were initiated on the same day, if such imports would
       be likely to compete with each other and with domestic
       like products in the United States market.

19 U.S.C. §1675a(a)(7).


               This court has exclusive jurisdiction over an action

commenced to contest a resulting “sunset review” determination.

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

determination, finding, or conclusion unsupported by substantial

evidence on the record, or otherwise not in accordance with law.

19   U.S.C.     §1516a(b)(1)(B)(i).            Substantial     evidence    is    “such

relevant evidence as a reasonable mind might accept as adequate

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

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

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

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

relevant data and articulate[d] a satisfactory explanation for

its action including a rational connection between the facts

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

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

quotation marks deleted).
Consolidated
Court No. 06-00173                                                                   Page 6


            Even       if     the    court       could     draw      “two   inconsistent

conclusions from the evidence does not prevent an administrative

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

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

determinations can be affirmed so long as they are reasonable

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

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

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

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

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


                                             B

            The        plaintiffs       contend          that        “the   Commission’s

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

law   because     it    did    not    reflect      the     actual      decision     of    the

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

substantial evidence on the record because it was based in part

on cumulated data, which included data from countries for which

the   Commission        made    negative         determinations.”            Plaintiffs’

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

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

cumulation is the decision of the ‘Commission’”.                             Id. at 12.
Consolidated
Court No. 06-00173                                                          Page 7


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

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

Czech       Republic     and   South   Africa,   and    the   determination    of

Commissioners Koplan and Lane with regard to Romania included

cumulated data from those other two countries,

        the Commission failed to act in accordance with law
        when it robotically tallied the votes and made an
        affirmative   determination as to   Romania  without
        reviewing the contradictions between the individual
        Commissioner’s decisions.

Id. at 16.


                                          C

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

record reflects findings that all reviews were initiated on May

2, 20053 and

        that the subject imports of small diameter CASSLP . . .
        from the Czech Republic, Japan, Romania, and South
        Africa are fungible with each other and with the
        domestic like product, that there will likely be a
        reasonable overlap of geographic markets and channels
        of distribution if the orders are revoked, and that
        the subject imports would be simultaneously present.


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

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

        3
            See R.Doc 231 at 9.
Consolidated
Court No. 06-00173                                                          Page 8


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

discernible     adverse    impact    on   the    domestic    industry       if   the

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

there was discretion to exercise the authority to cumulate the

subject imports during the instant review.4


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

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

presented here.       In that matter, five commissioners found that

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

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

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

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

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

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

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

commissioner      abused   her     discretion     because,      by    cumulating,

France was unfairly penalized for the failure of Brazil and

India to participate in the sunset review.

      4
       See R.Doc 231 at pages 15 through 18 for discussion of
other considerations that led four of the commissioners to
decline to exercise their discretion to cumulate subject imports
from Romania with the Czech Republic, Japan, and South Africa.
Consolidated
Court No. 06-00173                                                     Page 9


            The plaintiffs at bar attempt to distinguish Ugine,

contending that in that action,

     since the determination by Commissioners Miller and
     Hillman[] was that revocation of the orders from
     France, individually, and India/Brazil, cumulated,
     would cause a continuation or recurrence of material
     injury to the domestic industry, Commissioner Bragg’s
     decision    that  those  countries’   imports  would,
     cumulatively, also cause a continuation or recurrence
     of material injury to the domestic industry, was
     consistent.


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

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

be inapplicable in the facts presented herein, to wit:


     . . . Commissioner Bragg did not abuse her discretion
     by cumulating imports . . . because the requirements
     of § 1675a(a)(7) were met. There is no exception for
     cumulation in the statute based on non-participation
     in the sunset reviews. There is an express exception
     to cumulation under the adverse impact provision, and
     the Court declines to create an implied exception for
     non-participation when Congress clearly delineated the
     exceptions it intended under the Statute.


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


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

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

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

industries in the underlying agency determination were defined
Consolidated
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by    four    of    the   six   commissioners         as   tin-mill     products        and,

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

made a negative injury determination with regard to the tin-

mill-product        imports,       while    the   fourth      reached     the    opposite

result.        The remaining two commissioners defined the domestic

industry as one industry, encompassing both tin-mill products

and     flat-rolled        steel,     and     both     made     affirmative        injury

determinations.            Thus,    the    “Commission      reported      that     it    was

evenly divided as to whether increased importation of tin mill

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

appellants contended before the CAFC that the votes of those

commissioners        who     did    not     analyze    tin-mill       products      as     a

separate category could not be counted in the affirmative and

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

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


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

noted        that    those      two       commissioners       “specifically         voted

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

neither commissioner objected when the Commission tallied their

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

went on to state that, having
Consolidated
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        reached this conclusion, we are not “compelled . . .
        to probe the mental processes” of the commissioners
        any further to determine whether their votes were
        properly   counted    as    affirmative   despite   those
        commissioners’ different underlying reasoning.       Voss
        [Int’l Corp. v. United States, 67 CCPA 96, 102], 628
        F.2d   [1328,]   1332    [(1980)]   (holding   that   the
        Commission     properly      recorded    a     non-voting
        commissioner’s vote as an abstention rather than as a
        dissent); cf. Pub. Serv. Comm’n v. Fed. Power Comm’n,
        543 F.2d 757, 777 (D.C.Cir.1974)(holding that “in each
        instance, what counted in the definition of agency
        action was the vote rather than the individual view”
        of each member of the Federal Power Commission).
        Accordingly, the Commission did not err in counting
        the votes as to tin mill products as a 3-3 tie.


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

Corus Group cannot be discounted.


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

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

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

commissioners engaged in one-step analysis, others took a two-

step approach, and one commissioner did not specify his type of

analysis.     The domestic producers contended that “there should

be   a     single     methodology,     applicable   to    each     of    the

commissioners, for determining whether a domestic industry is

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

“statute on its face compels no such uniform methodology” and
Consolidated
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went on to make clear that the

      invitation to employ such diversity in methodologies
      is inherent in the statutes themselves, given the
      variety of the considerations to be undertaken and the
      lack of any Congressionally mandated procedure or
      methodology for assessment of the statutory tests.

           This court has no independent authority to tell
      the Commission how to do its job. We can only direct
      the Commission to follow the dictates of its statutory
      mandate.   So long as the Commission’s analysis does
      not violate any statute and is not otherwise arbitrary
      and capricious, the Commission may perform its duties
      in the way it believes most suitable.


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

and therefore does not conclude that the exercise of discretion

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

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

findings based on the cumulated data are not unsupported by

substantial evidence on the record.


                                      D

             The   plaintiffs    contend   that    Commissioner    Aranoff’s

decision on the

      volume, price effects, and impact             of imports from
      Romania on the domestic industry is           not supported by
      substantial evidence on the record,            particularly in
      view of the lack of vulnerability             of the domestic
      industry.
Consolidated
Court No. 06-00173                                                    Page 13


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

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

contradicted    by    those   of    Commissioners     Okun,      Hillman     and

Pearson.      Secondly,   they     contend   that   her    findings   contain

internal inconsistencies that render her volume, price-effect,

and   likely-impact    determinations        unsupported    by    substantial

evidence on the record.5


                                     (1)

           The plaintiffs state that Commissioner Aranoff

      found that the likely volume of imports of pipe from
      Romania would be significant if the order was revoked.
      . . .    The dissenting views of Commissioners Okun,
      Hillman,   and   Pearson   explicitly  lay   out   the
      substantial evidence on the record that discredits
      [this] conclusion.


Id. at 20 (citations omitted); that she

      found that “the subject imports from Romania . . .
      would be likely to have significant depressing or
      suppressing effects on the prices of the domestic like
      product in the reasonably foreseeable future if the


      5
       See Plaintiffs’ Memorandum, pp. 20-28. Additionally, the
plaintiffs request that, “[i]n the event of a remand . . . the
Court should also instruct the Commission to reconsider this
decision based on the entry of Romania into the European Union”.
Id. at 18.    But this request is not of consequence given the
discussion hereinafter.
Consolidated
Court No. 06-00173                                                Page 14


     antidumping order were revoked.”    . . .      [Yet a]s
     explained by Commissioners Okun, Hillman, and Pearson,

          in these reviews, subject imports from Romania
          undersold domestic product in every available
          price comparison. Notwithstanding the consistent
          underselling by subject imports from Romania,
          U.S. prices have increased over the period of
          review. . . . Nor has the underselling by subject
          imports from Romania had any price suppressing
          effect.

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

     decision that revocation of the antidumping duty order
     on small diameter CASSLP . . . from Romania would
     negatively   impact    the   domestic    industry  was
     unsupported by substantial evidence on the record,
     particularly in view of the lack of vulnerability of
     the domestic industry. . . . [Whereas] Commissioners
     Okun, Hillman, and Pearson [] explained:

          In line with our findings regarding the likely
          volume and price effects of subject imports from
          Romania, we find that subject imports would not
          be likely to have a significant adverse impact on
          the domestic industry’s output, sales, market
          share, profits, or return on investment, if the
          order were revoked.    As demand is projected to
          remain strong, the small volume of subject
          imports that would be likely upon revocation
          would not be likely to have a significant adverse
          impact on the domestic industry.

Id. at 26-27.


          Even accepting these assertions does not necessarily

govern   consideration     of      whether   another     commissioner’s

determination   is   unsupported   by   substantial    evidence   on   the
Consolidated
Court No. 06-00173                                                  Page 15


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

CAFC confirmed the

     indisputable proposition that each commissioner is
     free to attach different weight to factual information
     bearing on, and determinate of, the many statutory
     tests; and that commissioners may ultimately reach
     different factual conclusions on the same record.


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

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

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

findings of the dissenting commissioners,” it responded that

     Congress’ expectation that commissioners would file
     concurring and dissenting opinions stating their
     findings of fact and conclusions of law “would be
     pointless   if   the existence    of  differing   views
     precluded    courts   from     sustaining    Commission
     determinations.”

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

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

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

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

which     detracts    from   evidence   supporting     ITC’s   decision   is

neither surprising nor persuasive).


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

foregoing    caselaw,    this   court   cannot   set   aside   Commissioner
Consolidated
Court No. 06-00173                                                   Page 16


Aranoff’s     determination    merely     because   other     commissioners

developed different views thereof.


                                    (2)

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

revocation of an antidumping-duty order “would be likely to lead

to   continuation     or   recurrence    of   material   injury   within     a

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

this standard, the agency

       must decide the likely impact in the reasonably
       foreseeable future of an important change in the
       status quo -- the revocation or termination of a
       proceeding and the elimination of its restraining
       effects on volumes and prices of imports.


Uruguay Round Agreements Act Statement of Administrative Action,

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

considered    the   likely    volume,    price   effect,    and   impact    of

imports of the subject merchandise on the industry if the orders

were   revoked   or    the   suspended    investigation     terminated     and

determined that,

       based on evidence on the record, [] producers in
       Romania will ship significant volumes of small
       diameter CASSLLP . . . into the U.S. market if the
       antidumping duty order is revoked. Accordingly, . . .
       the likely volume of imports of small diameter CASSLP
       . . . from Romania into the United States would be
Consolidated
Court No. 06-00173                                                     Page 17


      significant in the reasonably foreseeable future if
      the antidumping duty order were revoked.


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

likely volume will be significant in that reasonably foreseeable

future, the

      subject imports from Romania would be likely to have
      significant depressing or suppressing effects on the
      prices of the domestic like product in the reasonably
      foreseeable future if the antidumping duty order were
      revoked.


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

imports, that,

      although demand is projected to remain strong, the
      likely substantial volume and price effects of the
      subject imports from Romania would be sufficient to
      have a significant negative impact on the production,
      shipments,   sales,    market   share,   employment,   and
      revenues of the domestic industry, despite its lack of
      vulnerability.     This reduction in the industry’s
      production,   shipments,    sales,   market   share,   and
      revenues   would    adversely    affect   the   industry’s
      profitability and ability to raise capital and
      maintain necessary capital investments.


Id. at 69.


             The plaintiffs are of the view that “portions of the

Commissioner’s      determination       are   unsupported     by   substantial

evidence on the record.”         Plaintiffs’ Memorandum, p. 20.            They
Consolidated
Court No. 06-00173                                                    Page 18


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

remand

       with instructions to provide specific cites to record
       evidence regarding Commissioner Aranoff’s findings on
       likely volume, price effect, and impact on the
       domestic industry in the event that the subject order
       is revoked, and if that is not possible, to enter a
       negative determination for Romania[.]


Id. at 29.


                                     (a)

             The plaintiffs posit “internal inconsistencies” that

render the commissioner’s volume determination unsupported by

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

they   question    her    consideration    of   historical     data   and   her

finding with regard to the duration of higher prices in western

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

       ignores her prior acknowledgement that Silcotub was
       only purchased by the Tenaris Group in 2004, and the
       testimony    of    Silcotub’s   representatives   that
       Silcotub’s   production   is  being   refocused toward
       higher-value-added non-subject merchandise, as well as
       making significant marketing changes.


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

take     into   account    the   “impact   of   imports   of    the   subject

merchandise on the industry before the order was issued”, and
Consolidated
Court No. 06-00173                                                            Page 19


the plaintiffs acknowledge that there are no historical data yet

for     that    company’s        purported    new    production     and    marketing

strategy.


               Ergo,    Commissioner     Aranoff’s      consideration       of     such

data, while acknowledging Silcotub’s announced strategic change,

was part of her statutory mandate.


               The   plaintiffs      take    issue    with   the    commissioner’s

conclusion that higher prices for CASSLP in western Europe and

Japan will not provide an incentive for Romanian producers to

continue to serve those markets rather than the United States

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

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

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

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

which    appears       to   be   reasonable,    considering     that      prices   for

subject pipe had only “recently been higher in western Europe

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

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

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

the   determination         is   reasonable    and   supported     by     substantial

evidence       on    the     record,    summary      judgment      is     appropriate
Consolidated
Court No. 06-00173                                                      Page 20


regardless of whether the evidence is in conflict); Metallverken

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

734 (1989).


                                      (b)

              The   plaintiffs   contest       Commissioner   Aranoff’s    view

that

       the subject imports from Romania would be likely to
       have significant depressing or suppressing effects on
       the prices of the domestic like product in the
       reasonably foreseeable future if the antidumping duty
       order were revoked[,]

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

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

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

prices increased during the period of review, even with the

underselling of the Romanian imports at issue, and claim this

circumstance should negate the commissioner’s finding.


              Although finding that “Romanian imports, which have

been    underselling      domestic   merchandise     during   the    period   of

review, are not currently having price depressing or suppressing

effects”, the commissioner also noted that

       improvements in the condition of the U.S. industry are
       to be expected following the imposition of an
       antidumping order, . . . [which] can be evidence of
Consolidated
Court No. 06-00173                                                           Page 21


      the effectiveness of the discipline imposed by an
      order.   Notwithstanding the discipline imposed by the
      order . . ., those imports continued to undersell the
      U.S. product by significant margins.[]    There is no
      evidence to suggest that such underselling would not
      continue in the event of revocation of the antidumping
      duty order.


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

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

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

and likely levels of underselling”.                Id.


           On     its        face,    this    is    clear     reasoning     by   the

commissioner, based upon substantial evidence, with regard to

the   price     effects        of     subject      Romanian     imports     if   the

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

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

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

to other factors”).


                                         (c)

           The plaintiffs assert that Commissioner Aranoff’s view

that revocation of the antidumping-duty order on CASSLP from

Romania   would     negatively         impact      the    domestic    industry     is

unsupported by substantial evidence on the record in light of

her   finding   that         “the    domestic      industry    is    not   currently
Consolidated
Court No. 06-00173                                                  Page 22


vulnerable to injury by reason of increased subject imports.”

This is based in particular upon consideration that

     the industry did not experience any financial losses
     during the period of review.      Rather, the domestic
     industry was profitable in every year of the period of
     review and profits increased to very high levels.


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

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

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

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


          But Commissioner Aranoff cites the following evidence

on the record in support of her ultimate determination that the

revocation of the antidumping-duty order would negatively impact

the domestic industry, to wit:

     [D]omestic producers’ . . . capacity significantly
     increased over the period of review.[] Production fol-
     lowed the same trend.[]  However, capacity utilization
     decreased over the period, albeit only slightly.[]

          U.S. shipments increased over the period of
     review[] and inventories declined.[]    Net sales in-
     creased over the period.[]     U.S. producers’ market
     share decreased from 2000 to 2004,[] as nonsubject
     imports gained market share.[]  However, domestic pro-
     ducers’ market share increased during the interim 2005
     period, as compared with the interim 2004 period.[]

          The number of production and related workers fell
     over the period,[] as did their hours worked.[]
     However, wages paid increased,[] as did productivity.[]
Consolidated
Court No. 06-00173                                        Page 23


     Both   capital    expenditures[]   and   research   and
     development expenses declined.[]

          I   concluded  above   that   revocation   of   the
     antidumping duty order with respect to Romania likely
     would lead to significant volumes of subject imports
     that would undersell the domestic like product and
     significantly depress or suppress U.S. prices.        In
     addition, although demand is projected to remain
     strong, the likely substantial volume and price
     effects of the subject imports from Romania would be
     sufficient to have a significant negative impact on
     the   production,  shipments,   sales,   market   share,
     employment, and revenues of the domestic industry,
     despite its lack of vulnerability. This reduction in
     the industry’s production, shipments, sales, market
     share, and revenues would adversely affect the
     industry’s profitability and ability to raise capital
     and maintain necessary capital investments.6

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

record omitted).



     6
       Plaintiffs’ memorandum, pages 27-28, criticizes the final
two sentences of this quotation as “conclusory . . . statements
[that] do not meet the Court’s substantial evidence standard
because they do not constitute cites to substantial evidence on
the record.” They refer to Nippon Steel Corp. v. United States,
29 CIT ___, 391 F.Supp.2d 1258 (2005)(“Nippon V”), wherein the
court reviewed a second remand determination in which, according
to the plaintiffs, the ITC made “similar conclusory statements”.
In Nippon V, the court found a lack of “substantial evidence to
support [the Commission’s] conclusion” and remanded the matter
yet again.   However, Nippon Steel Corp. v. United States, 494
F.3d 1371, 1381 (Fed.Cir. 2007), a reversal of that opinion, has
since issued, holding that the CIT “erred in concluding that the
Commission’s decision in the Second Remand Determination was not
supported by substantial evidence”.
Consolidated
Court No. 06-00173                                                            Page 24


             Judicial     review      of   a    matter   like    this   has   led    to

recognition that there is

     no inconsistency between the requirement that the
     factors indicating present injury be considered when
     examining threat and Congress’ statement that the
     absence of any indicia of present injury should not be
     considered conclusive that threat of injury does not
     exist.

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

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

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

vulnerable    does    not,     in   itself,      mandate    reconsideration.         A

reviewing court must still find that the administrative record

possesses substantial evidence in support of a point of view

arguably inconsistent with this factor.                  The court finds that to

be this case specifically at bar.


                                           II

             In    view   of    the    foregoing,        plaintiffs’     motion     for

judgment on the agency record must be denied and this action

dismissed.

Decided:    New York, New York
            January 11, 2008


                                                /s/ Thomas J. Aquilino, Jr.
                                                      Senior Judge
