 United States Court of Appeals for the Federal Circuit

                           04-1373, -1374

                       NUCOR CORPORATION,

                                            Plaintiff-Appellant,
                                 and

                UNITED STATES STEEL CORPORATION,

                                            Plaintiff-Appellant,
                                 and

 BETHLEHEM STEEL CORPORATION, NATIONAL STEEL CORPORATION,
      STEEL DYNAMICS, INC., WEIRTON STEEL CORPORATION,
           and INDEPENDENT STEELWORKERS UNION,

                                            Plaintiffs,

                                 v.

                          UNITED STATES,

                                            Defendant-Appellee,

                                and

    AB SANDVIK STEEL (now known as AB Sandvik Materials Technology)
and SANDVIK STEEL COMPANY (now known as Sandvik Materials Technolgy),
                                and
            ACERALIA CORPORACION SIDERURGICA, S.A.,
              ARCELOR INTERNATIONAL AMERICA INC.,
         ARCELOR PACKAGING INTERNATIONAL, SIDMAR, N.V.,
   SOLLAC ATLANTIQUE, SOLLAC LORRAINE, and TRADEARBED, INC.,
                                and
     BHP STEEL AMERICAS, LTD. (now BlueScope Steel Americas LLC),
            BHP STEEL LLC. (now BlueScope Steel Limited),
          NEW ZEALAND STEEL, LTD., and ISCOR (PTY.) LTD.,
                                and
            CORUS STAAL BV and CORUS STEEL USA INC.,
                                and
                DONGBU STEEL CO., LTD. and POSCO,
                                and
                                      -2-


            NIPPON STEEL CORPORATION, NISSHIN STEEL CO., LTD.,
                       KOBE STEEL LTD., JFE STEEL CORP.
           (formerly known as Kawasaki Steel Corp. and NKK Corporation),
             THAI COLD ROLLED STEEL SHEET PUBLIC CO., LTD., and
                       SUMITOMO METAL INDUSTRIES, LTD.,
                                       and
             SIDERURGICA DEL ORINOCO, C.A. and SIDERAR S.A.I.C.,
                                       and
                THYSSEN KRUPP STAHL AG and SALZGITTER AG,

                                                      Defendants-Appellees,

                                and
COMPANHIA SIDERURGICA NACIONAL, COMPANHIA SIDERURGICA PAULISTA,
USINAS SIDERURGICA DE MINAS GERIAS, S.A., and HYUNDAI HYSCO CO., LTD.,
                                and
           ASSOCIATION OF GERMAN SPECIALTY COLD ROLLED
                      STEEL STRIP PRODUCERS,
                                and
               BORCELIK CELIK SANAYII VE TICARET A.S.,

                                                      Defendants.



        Charles Owen Verill, Jr., Wiley Rein & Fielding LLP, of Washington, DC, argued
for plaintiff-appellant, Nucor Corporation. With him on the brief were Alan H. Price and
Timothy C. Brightbill.

       Stephen P. Vaughn, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington,
DC, argued for plaintiff-appellant, United States Steel Corporation. With him on the
brief were Robert E. Lighthizer, John J. Mangan and James C. Hecht.

       Charles A. St. Charles, Attorney, Office of the General Counsel, United States
International Trade Commission, of Washington, DC, argued for defendant-appellee,
United States. With him on the brief were James M. Lyons, Acting General Counsel,
and Rhonda M. Hughes, Acting Assistant General Counsel for Litigation. Of counsel
was Marc A. Bernstein, Attorney.

       Robert S. LaRussa, Shearman & Sterling LLP, of Washington, DC, for
defendants-appellees, Aceralia Corporation Siderurgica, S.A., ET AL. With him on the
brief was Christopher M. Ryan. Of counsel were Quentin M. Baird and Julie C.
Mendoza, Kaye Scholer LLP, of Washington, DC.

     Lynn M. Fischer Fox, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington,
DC, for defendants-appellees, BHP Steel Americas, Ltd. (now BlueScope Steel
                                      -3-


Americas LLC), ET AL. With her on the brief were John D. Greenwald, Robert C.
Cassidy, Jr., Gary N. Horlick and Leonard M. Shambon. Of counsel was Kristin H.
Mowry.

       Eric C. Emerson, Steptoe & Johnson LLP, of Washington, DC, for defendants-
appellees, Corus Staal BV, ET AL. With him on the brief were Richard O. Cunningham
and Tina Potuto Kimble.

       Donald B. Cameron, Kaye Scholer LLP, of Washington, DC, for defendants-
appellees, Dongbu Steel Co., Ltd., ET AL. With him on the brief were Juile C.
Mendoza, R. Will Planert and Margaret S. Rudin.

       Kenneth J. Pierce, Willkie Farr & Gallagher LLP, of Washington, DC, for
defendants-appellees, Nippon Steel Corporation, ET AL. With him on the brief were
William H. Barringer and Robert E. DeFrancesco. Of counsel were Christopher Dunn,
James P. Durling, Daniel L. Porter, Matthew R. Nicely and Carrie L. Owens.

       David P. Houlihan, White & Case LLP, of Washington, DC, for defendants-
appellees, Siderurgica Del Orinoco, C.A., ET AL. With him on the brief were Gregory J.
Spak and Richard J. Burke. Of counsel was Frank H. Morgan.

       Gail T. Cumins, Sharretts Paley Carter and Blauvelt, P.C., of New York, New
York, for defendants-appellees, Thyssen Krupp Stahl AG, ET AL.

Appeal from: United States Court of International Trade

Judge Gregory W. Carman
United States Court of Appeals for the Federal Circuit


                             04-1373,-1374

                        NUCOR CORPORATION,

                                             Plaintiff-Appellant,

                                  and

                 UNITED STATES STEEL CORPORATION,

                                             Plaintiff-Appellant,

                                  and

  BETHLEHEM STEEL CORPORATION, NATIONAL STEEL CORPORATION,
       STEEL DYNAMICS, INC., WEIRTON STEEL CORPORATION,
            and INDEPENDENT STEELWORKERS UNION,

                                             Plaintiffs,

                                   v.

                            UNITED STATES,

                                             Defendant-Appellee,

                                  and

     AB SANDVIK STEEL (now known as AB Sandvik Materials Technology)
 and SANDVIK STEEL COMPANY (now known as Sandvik Materials Technology),
                                 and
             ACERALIA CORPORACION SIDERURGICA, S.A.,
               ARCELOR INTERNATIONAL AMERICA INC.,
          ARCELOR PACKAGING INTERNATIONAL, SIDMAR, N.V.,
     SOLLAC ATLANTIQUE, SOLLAC LORRAINE, and TRADEARBED, INC.,
                                 and
      BHP STEEL AMERICAS, LTD. (now BlueScope Steel Americas LLC),
              BHP STEEL LLC (now BlueScope Steel Limited),
           NEW ZEALAND STEEL, LTD., and ISCOR (PTY.) LTD.,
                                 and
             CORUS STAAL BV and CORUS STEEL USA INC.,
                                       and
                       DONGBUSTEEL CO., LTD. and POSCO,
                                       and
            NIPPON STEEL CORPORATION, NISSHIN STEEL CO., LTD.,
                       KOBE STEEL LTD., JFE STEEL CORP.,
           (formerly known as Kawasaki Steel Corp. and NKK Corporation),
             THAI COLD ROLLED STEEL SHEET PUBLIC CO., LTD., and
                       SUMITOMO METAL INDUSTRIES, LTD.,
                                       and
             SIDERURGICA DEL ORINOCO, C.A. and SIDERAR S.A.I.C.,
                                       and
                THYSSEN KRUPP STAHL AG and SALZGITTER AG,

                                                     Defendants-Appellees,

                                         and

COMPANHIA SIDERURGICA NACIONAL, COMPANHIA SIDERURGICA PAULISTA,
USINAS SIDERURGICA DE MINAS GERIAS, S.A., and HYUNDAI HYSCO CO., LTD.,
                                and
           ASSOCIATION OF GERMAN SPECIALTY COLD ROLLED
                      STEEL STRIP PRODUCERS,
                                and
               BORCELIK CELIK SANAYII VE TICARET A.S.,

                                                     Defendants.

                          ___________________________

                          DECIDED: July 7, 2005
                          ___________________________


Before RADER, BRYSON, and GAJARSA, Circuit Judges.

BRYSON, Circuit Judge.

      The appellants, United States Steel Corporation and Nucor Corporation, are

domestic steel producers. Along with other domestic producers, they petitioned the

International Trade Commission to investigate imports of cold-rolled steel products to

determine if those imports were causing material injury to the domestic steel industry.

See 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). Upon completion of its investigations, the



04-1373,-1374                             2
Commission issued final determinations that the domestic steel industry was not

materially injured by reason of the imports.       The appellants and other domestic

producers filed an action in the Court of International Trade challenging the

Commission’s negative material injury determinations. The Court of International Trade

sustained the Commission’s determinations.        Nucor Corp. v. United States, 318 F.

Supp. 2d 1207 (Ct. Int’l Trade 2004). U.S. Steel and Nucor appeal. We affirm.

                                            I

      Section 201 of the Trade Act of 1974, 19 U.S.C. § 2251(a), authorizes the

President to take appropriate action to protect domestic industries from substantial

injury due to increased quantities of imports. In June 2001, the President requested

that the Commission conduct a section 201 investigation of steel products imported

between January 1997 and June 2001. Following its investigation, the Commission

determined that cold-rolled steel products “were being imported into the United States in

such increased quantities as to be a substantial cause of serious injury to the domestic

industry” and recommended that safeguard tariffs be imposed on steel products.

Consequently, in March 2002 the President imposed safeguard tariffs on steel products,

including cold-rolled steel products, of 30 percent for the first year, 24 percent for the

second year, and 18 percent for the third year.

      In September 2001, a number of domestic steel producers petitioned the

Commission to conduct the antidumping and countervailing duty investigations that

gave rise to this case.      The Commission’s antidumping and countervailing duty

investigations, which were directed to certain cold-rolled steel products, overlapped the




04-1373,-1374                               3
section 201 investigation and the subsequent imposition of tariffs on cold-rolled steel

products.

      The Commission’s responsibility in an antidumping or countervailing duty

investigation is to determine if a domestic industry is materially injured or threatened

with material injury by reason of imports. See 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1).

Material injury is defined as “harm which is not inconsequential, immaterial, or

unimportant.” Id. § 1677(7)(A). In order to make a material injury determination, the

Commission must consider the volume of the imports, the effect on prices of domestic

like products due to the imports, and the impact of the imports on the domestic

industry’s production. Id. § 1677(7)(B)(i). When considering the volume of the imports,

the Commission must determine if the volume is significant. Id. § 1677(7)(C)(i). When

determining the effect on price, the Commission must consider whether there has been

significant price underselling and whether the domestic prices are depressed or

suppressed because of the imports. Id. § 1677(7)(C)(ii).

      The Commission issued final determinations on all of the subject investigations in

September and November 2002. In those determinations, the Commission found that

the “Section 201 investigation and the President’s remedy fundamentally altered the

U.S. market for many steel products, including cold-rolled steel.”      The Commission

found that imports of those products declined sharply and that domestic prices

increased significantly in the period after the imposition of the section 201 tariffs. The

Commission further reported that, according to purchasers, the reduction in imports due

to the section 201 tariffs had led to “higher prices, supply shortages, and some broken

or renegotiated contracts.” Based on the results of its investigation, the Commission




04-1373,-1374                               4
concluded that the section 201 relief was the principal reason for the sharp decline in

imports near the end of the investigation period. The Commission further found that, as

of the conclusion of the antidumping and countervailing duty proceedings, “the domestic

cold-rolled steel products industry is neither materially injured nor threatened with

material injury by reason of subject imports.” Because the Commission determined that

the domestic industry was not suffering present material injury or a threat of material

injury as a result of the subject imports, no antidumping or countervailing duties were

imposed.

      In the Court of International Trade, the domestic producers argued that the

Commission’s negative material injury determinations were flawed because, among

other reasons, the Commission failed to consider the effects of imports in the early

portion of the investigation period; it failed to make a determination regarding the

significance of importers’ underselling of domestic producers; and it erred in its

determinations regarding the volume of imports and their impact on domestic prices. In

a detailed opinion, the trial court sustained the Commission’s determinations.

                                            II

      U.S. Steel and Nucor argue that the Commission erred by failing to consider the

effects of products imported prior to the imposition of section 201 tariffs when it

determined that the domestic industry was not suffering current material injury because

of imports. In particular, they contend that the requirement in 19 U.S.C. §§ 1671d(b)(1)

and 1673d(b)(1) that the Commission determine whether the domestic industry is

suffering material injury “by reason of imports” mandated that the Commission consider

the effects of imports throughout the period of investigation and not confine its




04-1373,-1374                               5
consideration to the effects of current imports. Because, in the appellants’ view, the

Commission based its material injury determinations solely on current imports, the

appellants argue that the Commission’s material injury determination was legally flawed.

       The trial court held that the Commission had reasonably construed the phrase

“by reason of imports” in 19 U.S.C. §§ 1671d(b)(1) and 1673d(b)(1) to allow it to focus

its investigation on the most recent import data.         The court explained that the

Commission had investigated imports for the entire period of investigation. Although the

Commission had focused mainly on current imports, it had also considered imports

during the early portion of that period in assessing the volume of imports, their effects

on price, and the overall impact of imports on the domestic industry. The Commission’s

particular focus on current imports, according to the trial court, was “in accord with the

remedial purpose of duties which are intended merely to prevent future harm to the

domestic industry by reason of unfair imports that are presently causing material injury.”

The court also found that although the Commission did not state explicitly that past

imports were not causing present material injury, it implicitly made that determination.

According to the court, the Commission properly assessed the effects of imports early in

the investigation period in light of the evidence that there was a steep decline in imports

near the end of the investigation period.

       Sections 1671d(b)(1) and 1673d(b)(1) state that the Commission must determine

whether a domestic industry “is materially injured . . . by reason of imports.” They do

not specify how the Commission should weigh imports early in the period of

investigation as compared to imports closer to the date of decision, nor do they provide

any guidance as to the considerations that should influence the weight the Commission




04-1373,-1374                               6
assigns to data from different portions of the investigation period. Because the statutes

are silent on those issues, and because the Commission, together with the Commerce

Department, is charged with the responsibility of administering the antidumping and

countervailing duty statutes, the Commission’s construction of those statutes is entitled

to deference under the principles of Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984). See Comm. for Fairly Traded Venezuelan Cement v. United

States, 372 F.3d 1284, 1289 & n.2 (Fed. Cir. 2004); Tx. Crushed Stone Co. v. United

States, 35 F.3d 1535, 1540 (Fed. Cir. 1994); Suramerica de Aleaciones Laminadas v.

United States, 966 F.2d 660, 665 & n.5 (Fed. Cir. 1992).

      We agree with the trial court that it was reasonable for the Commission to

interpret the statutory language to permit it to accord different weight to imports during

different portions of the period of investigation depending on the facts of each case. In

particular, the Commission acted reasonably in construing the statutory language to

permit it to focus on the most recent imports and pricing data. That construction is

reasonable for several reasons. First, the purpose of antidumping and countervailing

duty laws is remedial, not punitive or retaliatory, see Chaparral Steel Co. v. United

States, 901 F.2d 1097, 1103-04 (Fed. Cir. 1990), and current data typically is the most

pertinent in determining whether remedial measures are necessary, see Chr. Bjelland

Seafoods A/S v. United States, 19 Ct. Int’l Trade 35, 44 n.22 (1995). Second, section

1677(7)(B)(i) provides that, in making the material injury determination required by

sections 1671d(b)(1) and 1673d(b)(1), the Commission shall consider, inter alia, the

effects of the subject imports on domestic producers. Section 1677(7)(C)(iii) in turn

requires the Commission, in determining the impact of the subject imports on domestic




04-1373,-1374                               7
producers, to “evaluate all relevant economic factors which have a bearing on the state

of the industry in the United States.” As the trial court explained, in most cases the

most recent imports will have the greatest relevance to the current state of the domestic

industry. Third, the Commission has broad discretion with respect to the period of

investigation that it selects for purposes of making a material injury determination. As

the Court of International Trade has explained, because the statute “does not expressly

command the Commission to examine a particular period of time . . . the Commission

has discretion to examine a period that most reasonably allows it to determine whether

a domestic industry is injured by [less than fair value] imports.” Kenda Rubber Indus.

Co. v. United States, 630 F. Supp. 354, 359 (Ct. Int’l Trade 1986).               Since the

Commission has broad discretion to choose the most appropriate period of time for its

investigation, it would be nonsensical to hold that once the Commission has chosen an

investigation period, it is required to give equal weight to imports throughout the period it

has selected. For these reasons, both this court and the Court of International Trade

have typically upheld the Commission’s exercise of its discretion to focus on imports

during particular portions of the investigation period, especially imports during the most

recent portion of that period.      See Chaparral Steel, 901 F.2d at 1103; Taiwan

Semiconductor Indus. Ass’n v. United States, 93 F. Supp. 2d 1283, 1294 n.13 (Ct. Int’l

Trade 2000), aff’d, 266 F.3d 1339 (Fed. Cir. 2001); Angus Chem. Co. v. United States,

944 F. Supp. 943, 947-48 (Ct. Int’l Trade 1996), aff’d, 140 F.3d 1478 (Fed. Cir. 1998).

       In this case, the fact that section 201 tariffs were imposed during the period of

investigation made the recent data far more probative than earlier data as to whether

the industry was suffering present material injury as a result of imports.              The




04-1373,-1374                                8
Commission found that the section 201 relief “was having a major impact in the U.S.

market for cold-rolled steel and was the overwhelming factor in the sharp decline in

subject imports during the most recent period examined.” Substantial evidence in the

record supports that finding, and the appellants do not challenge the trial court’s

determination in that regard. Because the imposition of section 201 tariffs had such a

dramatic impact on the industry, it was reasonable for the Commission to conclude that

the most recent data was the most reliable indicator of whether the industry was

suffering material injury as a result of the subject imports and whether the imposition of

additional duties would be consistent with the remedial purposes of the antidumping and

countervailing duty laws.

       The appellants argue that the Commission did not simply assign greater weight

to current imports, but that it improperly focused exclusively on current imports and

failed to give any consideration to whether the domestic industry was suffering material

injury by reason of past imports. They contend that the record does not support the trial

court’s conclusion that the Commission examined imports over the entire investigation

period in making its determination that the subject imports were not causing present

material injury.

       In making the statutory determination that the domestic cold-rolled steel industry

was not suffering material injury by reason of the subject imports, the Commission

explained that it focused principally on “the current volume of subject imports and the

increase in domestic prices in 2002.”     The Commission concluded that the present

condition of the domestic industry was not “attributable in any material respect to the

current subject imports” and that “subject imports are not adversely affecting domestic




04-1373,-1374                               9
prices to a significant degree.” Its ultimate finding was that there was no “material injury

currently being experienced by the domestic industry . . . by reason of the subject

imports,” i.e., the imports during the period of investigation.     The Commission thus

explained that its material injury determination, although focusing mainly on current

imports, was not restricted solely to current imports but encompassed all “subject

imports” during the investigation period.

       The appellants do not argue that past imports continued to cause material injury

at the end of the investigation period because of accumulated inventories. Nor could

they, as the evidence showed that by the end of that period there were widespread

supply shortages in the industry, and many producers had been placed on allocation.

Instead, the appellants argue that the Commission ignored the continuing price effects

of earlier imports resulting from the fact that the prices set in contracts made earlier in

the period of investigation were generally “locked in” at the time of contract formation

and continued in effect throughout the later portions of the investigation period.

Contrary to the appellants’ contention, however, the Commission took those facts into

consideration; it simply did not find that they were sufficiently important to alter the

ultimate material injury determination. Thus, the Commission noted that past imports

“continue[d] to have an effect on the industry’s contract prices negotiated before the

Section 201 relief was effective,” but it nonetheless concluded that imports were not

adversely affecting domestic prices to a significant degree “based on the current volume

of subject imports and the increase in domestic prices in 2002.”           In light of that

statement and other portions of the Commission’s opinion, the trial court ruled that

although the Commission did not explicitly state that earlier imports were not causing




04-1373,-1374                               10
present material injury, it was reasonable to infer that the Commission so concluded. In

particular, the trial court rested its conclusion with respect to that issue on what it

referred to as the Commission’s “continued discussion of the effects that subject imports

entered earlier in the [period of investigation] had on the domestic industry and its

ultimate conclusion that the domestic industry was not suffering present material injury.”

       We concur in the trial court’s analysis. The Commission may not have stated

explicitly that earlier imports were not causing material injury, but that conclusion was

implicit in its analysis. The clear implication of the Commission’s findings on that issue

is that the prices fixed by contracts that were negotiated earlier in the investigation

period may have suppressed the overall average price of domestic products throughout

the period, but in light of the decrease in the current volume of imports and the increase

in domestic prices in 2002, the effect of those past imports was not significant. We

therefore uphold the trial court’s decision with regard to the adequacy of the

Commission’s treatment of the subject imports from early in the investigation period.

                                            III

       Nucor argues that the Commission failed to make the statutorily required

determination regarding the effect of underselling of domestic products by importers.

The statute requires that in considering the effect of imports on prices,

       the Commission shall consider whether—
           (I) there has been significant price underselling by the imported
       merchandise as compared with the price of domestic like products of the
       United States, and
           (II) the effect of imports of such merchandise otherwise depresses
       prices to a significant degree or prevents price increases, which otherwise
       would have occurred, to a significant degree.




04-1373,-1374                               11
19 U.S.C. § 1677(7)(C)(ii). Nucor argues that in analyzing underselling by the subject

imports, the Commission failed to satisfy its statutory obligation to analyze underselling

and price suppression separately.

      The trial court held that the Commission had complied with the requirements of

section 1677(7)(C)(ii).   As the court noted, the Commission compared underselling

margins in 1999 with underselling margins in 2002, and it found that “most of the

underselling occurred earlier in the period examined, prior to the imposition of Section

201 relief.” The court ruled that it was reasonable for the Commission to compare

underselling margins in 1999 to those in 2002 and that the Commission had discretion

to choose the method it used to make its determination as to the significance of

underselling.

      Nucor contends that the Commission did not properly assess the significance of

underselling because it “failed to provide either a concrete conclusion regarding the

significance of underselling or any meaningful discussion of several key components

required for such a conclusion.” In particular, Nucor objects that the Commission never

made a determination as to whether the level of underselling during the period of

investigation was significant and that it failed to make separate determinations as to

underselling and the effect of imports in depressing prices or preventing price increases.

Because the Commission did not make separate findings with respect to those issues,

Nucor argues that the decision cannot be sustained.

      The Commission complied with the statutory requirement that it consider whether

there had been underselling during the investigation period and whether that

underselling was significant. The Commission found that the underselling margins of




04-1373,-1374                              12
1999 had essentially disappeared by 2002. In particular, the Commission found that the

average margin of underselling went from 9.1 percent in 1999 to an average overselling

margin of 4.0 percent in 2002, and that for sales to end users the average underselling

went from 24.8 percent in 1999 to 1.5 percent in 2002. It is true, as Nucor contends,

that the Commission did not state in so many words that the volume of underselling was

an insignificant factor in evaluating whether the effect of imports on prices had led to

present material injury to the domestic industry. Nonetheless, the trial court found that

to be the plain import of the Commission’s analysis, and we agree. Where an agency

has not made a particular determination explicitly, the agency’s ruling nonetheless may

be sustained as long as “the path of the agency may be reasonably discerned.”

Ceramica Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed. Cir. 1987),

quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286

(1974). In this case, the agency’s path is clear, even though it did not set forth its

conclusion as to the issue of underselling explicitly.

       Nucor objects to the trial court’s reliance on Ceramica on the ground that

Ceramica addressed an issue of methodology, rather than a mandatory statutory

determination. However, Nucor cites no authority for its conclusion that the court may

not uphold an agency’s statutory determination “of less than ideal clarity,” and nothing in

Ceramica indicates that the principle is limited to issues of methodology.

       In Altx, Inc. v. United States, 167 F. Supp. 2d 1353, 1365 (Ct. Int’l Trade 2001),

aff’d, 370 F.3d 1108 (Fed. Cir. 2004), the Court of International Trade held that the

Commission was required to make two distinct determinations, one for each prong of

section 1677(7)(C)(ii), and that it could not “simply refer to its conclusion regarding the




04-1373,-1374                                13
effect of underselling on price depression and/or suppression as a basis for finding

underselling not to be significant.” Nucor argues that the Commission violated that

principle by conflating the two prongs of the price effects analysis. In fact, however, the

Commission discussed underselling separately from its discussion of price depression

and suppression. The Commission thus did not conflate the two prongs of section

1677(7)(C)(ii).

       Nucor next argues that in prior cases the Commission has explicitly addressed

the significance of underselling and that its failure to do so in this case violates the

principle that when an agency deviates from a longstanding practice, it must explain

why it has done so. See Sec’y of Agric. v. United States, 347 U.S. 645, 652-53 (1954);

British Steel PLC v. United States, 127 F.3d 1471, 1475 (Fed. Cir. 1997).           Nucor,

however, has not established that the Commission deviated from a longstanding

practice of addressing underselling in a particular way in its final determinations.

Rather, as the trial court noted, the Commission “has recognized that each injury

investigation is sui generis, involving a unique combination and interaction of many

economic variables; and consequently, a particular circumstance in a prior investigation

cannot be regarded by the [Commission] as dispositive of the determination in a later

investigation.” We agree with the trial court that the Commission’s determinations in

other 2002 investigations do not detract from the reasonableness of the Commission’s

analysis of underselling in this case.

       Finally, Nucor contends that the Commission erred by ignoring the volume of

current underselling, which in the first quarter of 2002 increased to its highest level

since the third quarter of 1999.         As the trial court noted, however, the volume of




04-1373,-1374                                  14
underselling in the second quarter of 2002 decreased to zero, and the Commission was

not “obligated to conduct a price comparison analysis that accounts for variations in

sales volumes.” Nippon Steel Corp. v. United States, 182 F. Supp. 2d 1330, 1341 (Ct.

Int’l Trade 2001). There is no indication that the Commission failed to consider the

volume of underselling during each quarter, and we agree with the trial court that the

underselling data for the first quarter of 2002 does not undermine the Commission’s

conclusion as to the absence of significant underselling.

                                           IV

      Nucor next challenges the Commission’s determinations regarding the volume

and price effects of imports on the domestic industry. Nucor again asserts that the

Commission impermissibly focused only on current imports from the period after the

section 201 remedy. We have already addressed the issue of the Commission’s focus

on the most recent imports in making its material injury determination, and we have

upheld the Commission’s decision in that regard. As we noted in the course of that

discussion, although the Commission focused principally on the most recent imports, it

considered all the subject imports in making its material injury determination and

concluded that “any material injury being experienced by the domestic industry [is not]

by reason of the subject imports.”      As noted, the trial court held that substantial

evidence supported the Commission’s finding that the subject imports did not suppress

or depress domestic prices, even in light of the evidence that some existing contracts

with lower pricing continued to be honored during the period of investigation, and we

uphold the trial court’s decision in that regard. Our resolution of that issue answers




04-1373,-1374                              15
Nucor’s contention that the Commission failed to determine whether past imports had

caused present material injury to the domestic industry.

       Nucor further contends the Commission had a statutory obligation to distinguish

between the effects of the section 201 relief and the effects that the filing of the

antidumping and countervailing duty petitions had on the most recent import data. The

relevant statutory provision, 19 U.S.C. § 1677(7)(I), states:

       Consideration of post-petition information. The Commission shall consider
       whether any change in the volume, price effects, or impact of imports of
       the subject merchandise since the filing of the petition in an investigation
       under [19 U.S.C. §§ 1671-1671h and 1673-1673h] is related to the
       pendency of the investigation and, if so, the Commission may reduce the
       weight accorded to the data for the period after the filing of the petition in
       making its determination of material injury, threat of material injury, or
       material retardation of the establishment of an industry in the United
       States.

That provision requires the Commission to consider whether changes in the industry are

related to the pendency of an antidumping or countervailing duty investigation, although

it gives the Commission discretion in determining how to assess post-filing information.

The Statement of Administrative Action issued in connection with the Uruguay Round of

the General Agreement on Tariffs and Trade is to the same effect. See Uruguay Round

Agreements Act: Statement of Administrative Action, H.R. Doc. No. 103-316, Vol. 1, at

853-54 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4186.

       The Commission specifically adverted to the change in import volumes following

the filing of the petitions and found that “both the pending investigations and the Section

201 investigation had an impact on subject import volumes.” Based on its analysis of

the data, however, the Commission concluded that the section 201 relief “fundamentally

altered the U.S. market for cold-rolled steel and was the most significant factor in the




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decline of subject imports.” The Commission thus explicitly found that the section 201

remedy recommendations and the imposition of section 201 tariffs was more significant

than the effect of the pendency of the antidumping and countervailing duty

investigations. The Commission’s analysis therefore satisfied the statutory requirement

that it consider the effects of the subject antidumping and countervailing duty

investigations on the volume of imports, their price effects, and their impact on the

domestic industry.

      In sum, the Commission’s findings on the statutory issue of material injury by

reason of imports and on the various subsidiary issues could have been more explicit,

and the Commission’s analysis of the reasons for its findings could have been more

detailed. Nonetheless, as the trial court correctly ruled, judicial review of an agency’s

findings does not demand expansive discussion or rigid adherence to a specific formula,

as long as the court can determine that the statutory requirements have been satisfied.

Because we do not agree with the appellants’ contention that the Commission failed to

comply with several essential requirements of the antidumping and countervailing duty

statutes, we affirm the trial court’s ruling upholding the Commission’s determination.

                                       AFFIRMED.




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