                          Slip Op. 04 - 04

           UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - -   x
OLIN CORPORATION-BRASS GROUP; OUTOKUMPU
AMERICAN BRASS; REVERE COPPER PRODUCTS,   :
INC.; THE INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS; THE     :
UNITED AUTO WORKERS (LOCAL 1024 AND LO-
CAL 2367); and THE UNITED STEELWORKERS    :
OF AMERICA (AFL-CIO/CLC),
                                          :
                          Plaintiffs,
                                          :
                    v.
                                          :
UNITED STATES,                                Court No. 00-05-00232
                                          :
                          Defendant,
                                          :
                  -and-
                                         :
POONGSAN CORPORATION and PMX INDUSTRIES,
INC.,                                    :

              Intervenor-Defendants.    :
- - - - - - - - - - - - - - - - - - - - x

                          Memorandum & Order

[Plaintiffs' motion for judgment on the
 agency record denied; action dismissed.]

                                              Decided: January 9, 2004


     Collier Shannon Scott, PLLC (David A. Hartquist, Jeffrey S.
Beckington, Kathleen W. Cannon and Grace W. Kim) for the plain-
tiffs.

     Lyn M. Schlitt, General Counsel, Marc A. Bernstein, Acting
Assistant General Counsel, Charles A. St. Charles, Attorney-Ad-
viser, United States International Trade Commission, for the
defendant.

     Akin, Gump, Strauss, Hauer & Feld, L.L.P. (Warren E. Connelly
and Catherine J. Finnegan) for the intervenor-defendants.


          AQUILINO, Judge:   This action, commenced pursuant to 19

U.S.C. §1516a(a), contests the determination of the U.S. Inter-
Court No. 00-05-00232                                        Page 2


national Trade Commission ("ITC") sub nom. Brass Sheet and Strip

from Brazil, Canada, France, Germany, Italy, Japan, Korea, the

Netherlands, and Sweden, 65 Fed.Reg. 20,832 (April 18, 2000), that

     revocation of the antidumping duty orders on brass sheet
     and strip from Korea . . . would not be likely to lead to
     continuation or recurrence of material injury to an
     industry in the United States within a reasonably
     foreseeable time.


This notice of the ITC's five-year or "sunset-review" determination

pursuant to 19 U.S.C. §1675(c)   (1995) notes the dissents of two of

the six commissioners voting on the matter.


          The plaintiffs plead their perceived causes of action

most succinctly as follows:

                              COUNT I

          11. The ITC's decision not to cumulate imports from
     Korea with other subject imports was contrary to law.
     The ITC relied solely on a newly-created "conditions of
     competition" factor, essentially a separate and individ-
     ual-country causation analysis, to refuse to cumulate the
     subject imports from Korea with other subject imports.
     The Commission's individual-country causation analysis,
     as a predicate to cumulation, defeats the purpose of
     cumulation and represents an unlawful exercise of the
     Commission's discretion in applying the cumulation pro-
     vision.


                              COUNT II

          12. The ITC's decision not to cumulate imports from
     Korea with the subject imports was not supported by the
     facts of record. The "conditions of competition" factor
     the Commission analyzed as the basis for its determina-
     tion not to cumulate imports from Korea with imports from
     the other countries were neither relevant to the cumula-
     tion analysis nor consistent with the conditions of com-
     petition the Commission identified elsewhere in its
     determination.
Court No. 00-05-00232                                                   Page 3


                                    COUNT III

          13. Commissioner Askey's determination that there
     was no discernible adverse impact by reason of imports
     from Korea was contrary to law and was not supported by
     substantial evidence of record.1


And, in accordance with USCIT Rule 56.2, the plaintiffs have

interposed a motion for judgment on these grounds and based upon

the record compiled by the ITC in conjunction with its foregoing

determination.2

                                        I

            The    court's      jurisdiction    to   decide   this   action   is

pursuant    to    19   U.S.C.    §1516a(a)(2)(B)(iii)     and   28   U.S.C.   §§

1581(c), 2631(c).        And, whatever the issues raised herein, the

ITC's determination must be affirmed 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).        Moreover, the rule has

been that, in

     reviewing an agency's construction of a statute that it
     administers, this court addresses two questions outlined
     by the Supreme Court in Chevron U.S.A., Inc. v. Natural
     Resources Defense Council, Inc., 467 U.S. 837, 842-43
     . . . (1984). The first question is "whether Congress
     has directly spoken to the precise question at issue."
     Id. at 842 . . .. If so, this court and the agency "must
     give effect to the unambiguously expressed intent of
     Congress." Id. at 843 . . .. If, however, Congress has
     not spoken directly on the issue, this court addresses


     1
         Boldface capitals, underscoring as in original.
    2
      The plaintiffs have also interposed a motion for oral argu-
ment that need not be granted, given the quality of their written
submissions, as well as of those on behalf of the parties in oppo-
sition to the motion for judgment.
Court No. 00-05-00232                                        Page 4


     the second question of whether the agency's interpreta-
     tion "is based on a permissible construction of the
     statute." Id.

          "To survive judicial scrutiny, an agency's construc-
     tion need not be the only reasonable interpretation or
     even the most reasonable interpretation."     Koyo Seiko
     [Co. v. United States], 36 F.3d [1565,] 1570 [Fed.Cir.
     1994]. Thus, when faced with more than one reasonable
     statutory interpretation, "a court must defer to an
     agency's reasonable interpretation . . . even if the
     court might have preferred another." NSK Ltd. v. United
     States, 115 F.3d 965, 973 (Fed.Cir. 1997) (citations
     omitted).


U.S. Steel Group v. United States, 225 F.3d 1284, 1286-87 (Fed.Cir.

2000).   Compare United States v. Mead Corp., 533 U.S. 218 (2001).


                                 A

           The statute underlying this action is the Uruguay Round

Agreements Act ("URAA"), Pub. L. No. 103-465, 108 Stat. 4809 (Dec.

8, 1994), section 220 of which established the five-year, "sunset"

reviews of outstanding antidumping- and countervailing-duty orders

to be conducted pursuant to:


     Special rules for section 1675(b) and 1675(c) reviews

     (a)   Determination of likelihood of continuation or
           recurrence of material injury

           (1) In general

                In a review conducted under section
           1675(b) or (c) of this title, the Commission
           shall determine whether revocation of an order
           . . . would be likely to lead to continuation
           or recurrence of material injury within a
           reasonably foreseeable time. The Commission
           shall consider the likely volume, price ef-
           fect, and impact of imports of the subject
           merchandise on the industry if the order is
Court No. 00-05-00232                                                    Page 5


           revoked or the suspended           investigation       is
           terminated. . . .


19 U.S.C. §1675a(a).     In addition to explaining in further detail

the factors the ITC is to consider in evaluating the likely volume

of   imports   and   their   price   effect   and   impact   on    a   domestic

industry, the statute provides for cumulation in sunset reviews as

follows:


           For purposes of this subsection, the Commission may
      cumulatively assess the volume and effect of imports of
      the subject merchandise from all countries with respect
      to which reviews under section 1675(b) or (c) of this
      title 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. The
      Commission shall not cumulatively assess the volume and
      effects of imports of the subject merchandise in a case
      in which it determines that such imports are likely to
      have no discernible adverse impact on the domestic
      industry.


19 U.S.C. §1675a(a)(7).


                                      B

           Plaintiffs' Rule 56.2 motion is accompanied by a proposed

form of order, which would remand this matter to the ITC and

require three commissioners who voted in support of the determina-

tion at bar to conduct their

      cumulation analysis without regard either to whether
      imports from Korea, by themselves, will likely cause
      material injury to the domestic industry in the event of
      revocation or to the establishment by Poongsan Metal
      Corp., a Korean producer, of a U.S. affiliate,

and also require the fourth, Commissioner Askey, to
Court No. 00-05-00232                                          Page 6


     analyze the "no discernible adverse impact" exception to
     cumulation in a manner consistent with the language of
     the statute, the legislative history, and the facts of
     record.

                                 (1)

          To address first this latter proposed form of relief, the

plaintiffs claim that

     Commissioner Askey's cumulation analysis was flawed in
     two significant respects.     First, she required that
     imports have "a" discernible adverse impact in order to
     cumulate rather than "no" discernible adverse impact in
     order not to cumulate. Second, she insisted that the
     impact of the imports be reflected in factors in addition
     to the import volume. Both of these interpretations are
     contrary to the statute and the legislative history and
     are not in accordance with law.


Plaintiffs' Rule 56.2 Brief, p. 32 (underscoring in original). Cf.

USCIT Pub. 3290, pp. 9 n. 41, 10 n. 46, 36-37, 40-41.       This com-

plaint about this particular commissioner's mode of analysis has

been pleaded before.    Careful consideration of it in Neenah Foun-

dry Co. v. United States, 25 CIT       , 155 F.Supp.2d 766 (2001), for

example, left the court unable to conclude that her approach was

not in accordance with law.    The court's reasoning in support of

that holding per part I-C of its opinion and order, 25 CIT at       ,

155 F.Supp.2d at 774-77, is incorporated herein by reference.


                                 (2)

          To the extent the complaint of the plaintiffs about the

three other commissioners in the ITC majority at bar coincides with

that filed in Neenah, that opinion also governs their approach to

cumulation herein.     In that action as in this one, the primary
Court No. 00-05-00232                                                 Page 7


issue before the court was whether, in the context of cumulation,

it   was   an   abuse   of   discretion   for   commissioners   to   look   to

"conditions of competition"3 in determining the appropriateness of

assessing cumulatively the likely volume and price effects of

subject imports from one country [India in Neenah, herein Korea]

with those from other covered countries of origin.         The court could

not and therefore did not conclude that such an approach amounted

to an abuse of discretion or otherwise was not in accordance with

law.    See Neenah Foundry Co. v. United States, 25 CIT at             , 155

F.Supp.2d at 769-74.

            In this action, the views of the three commissioners at

issue are reported as follows:


            The limited record concerning subject imports from
       Brazil, Canada, France, Germany, Italy, and Japan
       indicates that, if the orders are revoked, those subject
       imports would likely compete in the U.S. market under
       similar conditions of competition. As indicated above,
       the record does not indicate any change in the conditions
       of competition with respect to imports from these subject
       countries since imposition of the orders. Therefore, we
       conclude that the orders were primarily responsible for
       the reduction in imports of brass sheet and strip from
       these subject countries to the United States. According-
       ly, we exercise our discretion to cumulate subject
       imports from these countries.

            By contrast, subject imports from Korea would likely
       face different conditions of competition in the U.S.
       market than the subject imports from those six countries.
       Specifically, subsequent to the original determination,
       the principal Korean producer/exporter of the subject
       merchandise, Poongsan, has held a *** -percent ownership
       interest in a U.S. producer, PMX.      PMX established a
       greenfield operation in Cedar Rapids, Iowa in 1992 and is

       3
       USITC Pub. 3247, pp. 11-16, 23, 28-31 (Oct. 1999); USCIT
Pub. 3290, pp. 10, 13, 14, 16, 17, 23, 27, 28.
Court No. 00-05-00232                                                   Page 8


       now one of the leading U.S. producers of the domestic
       like product.69 None of the brass sheet and strip pro-
       ducers in Brazil, Canada, France, Germany, Italy, or
       Japan has an affiliated producer of the domestic like
       product in the United States. Accordingly, whereas the
       presence of other subject producers in the U.S. market
       would be limited to exports, the principal Korean
       producer has made a substantial commitment to production
       in the United States. On the basis of this significant
       difference in the conditions of competition between Korea
       and other subject countries, we do not exercise our
       discretion to cumulate subject imports from Korea with
       other subject imports.

USITC Pub. 3290, pp. 13-14 (footnotes 68, 70, 71 omitted).              As for

footnote 69, it states that "PMX's U.S. capacity is substantially

larger than Poongsan's and the range of products is similar."              Cf.

id. at 22.

              The court has finally reviewed the ITC's record and finds

substantial evidence to exist thereon in support of the above-

quoted analysis.        Moreover, in the light of that record, the court

cannot conclude that it was an abuse of discretion for the ITC not

to cumulate whatever imports there may have been or could be from

some eight other producers of brass sheet and strip in Korea.


                                       II

              In view of the foregoing, plaintiffs' motion for judgment

upon   that    record    must   be   denied   and   this   action   dismissed.

Judgment will enter accordingly.

              So ordered.

Decided:      New York, New York
              January 9, 2004


                                       /s/ Thomas J. Aquilino, Jr.
                                                    Judge
