Nucor Fastener Div. v. United States

2013 CIT 65

• Court: United States Court of International Trade
• Decided: May 24, 2013
• Docket: 09-00531
• Status: Published

Opinion

Slip Op. 13-65

UNITED STATES COURT OF INTERNATIONAL TRADE

NUCOR FASTENER DIVISION,

Plaintiff, Before: Richard W. Goldberg, v. United States Judge Court No. 09-00531

UNITED STATES, PUBLIC VERSION Defendant,

and

PORTEOUS FASTENER CO., HEADS & THREADS INTERNATIONAL, LLC, SOULE, BLAKE & WECHSLER, INC., INDENT METALS LLC, XL SCREW CORPORATION, BOSSARD NORTH AMERICA, HILLMAN GROUP, FASTENAL CO., FASTENERS AND AUTOMOTIVE PRODUCTS, BRIGHTON-BEST INTERNATIONAL, INC., and BRIGHTON-BEST INTERNATIONAL (TAIWAN) INC., Defendant-Intervenors.

OPINION AND ORDER

[Defendant’s remand redetermination is sustained and plaintiff’s request for a final investigation is denied.]

Dated: May 24, 2013

Daniel B. Pickard, Wiley Rein LLP, of Washington, DC, argued for plaintiff. With him on the brief were Alan H. Price and Maureen E. Thorston.

Mary J. Alves, United States International Trade Commission, of Washington, DC, argued for defendant. With her on the brief were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel for Litigation.

Matthew T. McGrath, Barnes Richardson & Colburn LLP, of Washington, DC, argued for defendant-intervenor. With him on the brief was Stephen T. Brophy. Court No. 09-00531 Page 2

Goldberg, Senior Judge: Plaintiff Nucor Fastener Division (“Nucor”), a domestic

producer of nuts, bolts, and other fasteners, seeks judicial review of the International Trade

Commission’s (“the ITC” or “the Commission”) remand redetermination from its preliminary

antidumping and countervailing duties investigations into Certain Standard Steel Fasteners from

China and Taiwan, USITC Pub. 4109, Inv. Nos. 701-TA-472 and 731-TA-1171-1172 (Nov.

2009) (“ITC Pub. 4109”). On remand, Nucor argues that the ITC did not properly address the

concerns of the Court of International Trade when it reaffirmed its findings that the data it used

to determine that Chinese and Taiwanese importers were not dumping was comprehensive and

that Producer A was properly included into its analysis because it was, indeed, a domestic

producer.

For the reasons discussed below, the ITC’s remand redetermination is sustained and

Nucor’s request for a final investigation is denied.

BACKGROUND

On September 23, 2009, petitioner Nucor Fastener Division of St. Joseph, Indiana, filed a

petition with the ITC alleging that U.S. producers of certain standard steel fasteners (“CSSF”)

were materially injured and threatened with material injury by reason of sales at less than fair

value (“LTFV”) and subsidized imports of CSSF from China and sales at LTFV of CSSF

imported from Taiwan. The ITC initiated both a countervailing duty investigation and an

antidumping duty investigation.

In preliminary antidumping and countervailing duty determinations, the ITC determines

whether there is a reasonable indication that a domestic industry is materially injured or

threatened with material injury, or that the establishment of an industry is materially retarded, by

reason of the allegedly unfairly traded imports. 19 U.S.C. §§ 1671(b)(a), 1673b(a) (2006). To Court No. 09-00531 Page 3

reach that determination, the ITC weighs the evidence before it and determines whether: “(1) the

record as a whole contains clear and convincing evidence that there is no material injury or threat

of such injury; and (2) no likelihood exists that contrary evidence will arise in a final

investigation.” Am. Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed. Cir. 1986).

In determining whether the domestic industry has suffered material injury or faces the

threat of such injury, the ITC considers factors such as the volume of subject imports, the subject

imports’ effect on prices for the domestic like product, and the subject imports’ impact on

domestic producers of the domestic like product in the context of U.S. operations. 19 U.S.C. §

1677(7)(B)(i). The ITC considers all relevant economic factors that impact the U.S. industry,

with no single factor being dispositive. Id. § 1677(7)(C)(iii). All factors are considered within

the context of the business cycle and competitiveness of the affected industry. Id.

On November 9, 2009, after conducting a preliminary investigation, the ITC found: (1)

the record as a whole contained no reasonable indication of material injury by reason of

cumulated subject imports from China and Taiwan; and (2) the record as a whole contained no

reasonable indication of a threat of material injury by reason of cumulated subject imports. See

generally ITC Pub. 4109. The ITC based its determination on the following factors: the

conditions of competition and the business cycle (including demand conditions, supply

conditions, raw material costs, and interchangeability), the volume of cumulated subject imports

from China and Taiwan, the price effects of the cumulated subject imports, and the impact of the

cumulated imports. Id. at 38–45. The ITC’s determination that no threat of material injury

existed was based on its consideration of likely subject import volumes, likely price effects, and

likely impact. Id. at 41–50. Court No. 09-00531 Page 4

Although the ITC found that the cumulated volume of subject imports from China and

Taiwan was significant in absolute terms and that subject imports were pervasively undersold,

the ITC determined that there was no overall correlation between the large and steady volume of

subject imports and the changes in the domestic industry’s conditions and prices. Id. at 36–45.

First, between 2006 and 2008, as demand somewhat declined, the ITC did not observe any

significant changes that would indicate that subject imports were impinging upon the domestic

industry’s market share. Id. at 36–38. Rather, market share across the domestic industry, subject

imports, and imports from countries outside of China and Taiwan remained stable. Id. Second,

the ITC did not observe any negative price effects, as domestic industry prices tended to remain

at or above their initial-period prices. Id. at 38–41. Moreover, the domestic industry’s “cost of

goods sold as a share of net sales,” the ratio the ITC commonly uses to analyze price

suppression, was relatively low and stable between 2006 and 2008. Id. at 40–41.

Notwithstanding small declines in demand, a significant subject-import market share, and

significant underselling from 2006 to 2008, the ITC found increased profitability and solid

performance. Id. at 36–45.

Even during the 2009 economic downturn, which saw noticeable declines in demand by

consumers of CSSF, the ITC determined that slight declines in domestic market share (24.5

percent in 2008 to 23.3 percent in 2009) were the result of an increase in market share by non-

subject imports as opposed to those from China and Taiwan. Id. at 38. With respect to price

effects, the cost of goods to net sales ratio was higher in 2009 as a result of price declines in

response to the recession, not as a result of the volume of subject imports. Id. at 41.

Underselling was not any more pervasive in 2009 than in any prior years. Id. Although lower

sales and profitability ensued, as expected, from the recession, the domestic industry managed to Court No. 09-00531 Page 5

earn $3.8 million in operating income ($11.4 million in 2008) and maintained a positive 5.8

percent operating margin (12.2 percent in 2008). Id. at 24–45. Thus, the ITC found that the

record as a whole contained clear and convincing evidence of no reasonable indication of

material injury by reason of cumulated subject imports of CSSF from China and Taiwan and no

likelihood that contrary evidence would be discovered in any final investigation. Id. at 9, 36–45.

In considering whether there was any reasonable indication of a threat of material injury

to the domestic producers, the ITC did not find a likelihood of substantially increased imports

from China and Taiwan. Id. at 47. Although the Chinese and Taiwanese producers of CSSF had

excess capacity, were export-oriented, and undersold CSSF in the U.S. market, the record data

showed that their market share remained relatively stable. Id. at 47–48. The ITC also found that

the industries in China and Taiwan were unlikely to change very much in the near future. Id. at

48–49. These factors, along with the fact that subject import pricing did not stimulate demand

for significant additional subject imports during the investigation period, led the ITC to

determine that subject imports were unlikely to constitute a threat of material injury to domestic

producers. Id. at 49.

On May 14, 2010, Nucor moved for judgment on the agency record pursuant to USCIT

Rule 56.2, challenging the ITC’s preliminary determination results. Br. in Support of Nucor

Fastener Division’s Rule 56.2 Mot., D.E. 32, at 1 (“Pl.’s Mem.”). On August 11, 2011, this court

granted in part and denied in part Nucor’s motion. Nucor Fastener Div. v. United States, 35 CIT

__, 791 F. Supp. 2d 1269 (2011). The court reversed and remanded back to the ITC the

following two issues: (1) the ITC’s treatment of its import data as comprehensive; and (2) the

ITC’s unqualified reliance on Producer A’s (which identified itself as a U.S. producer of

domestic like product) questionnaire response. Id. at __, 791 F. Supp. 2d at 1292. Court No. 09-00531 Page 6

The court agreed with Nucor’s challenge of the ITC’s description of the importer

questionnaire data as comprehensive. It identified “three potential explanations” for the ITC’s

conclusion and argued that each was illogical. Pl.’s Mem. at 26. First, Nucor questioned the

ITC’s assertion that the “responses ultimately received from [the thirty importers] represented

the large majority of known CSSF imports from January 2006 and June 2009.” Id. The ITC

explained that it compared the importers responsible for the thirty responses “to its initial list of

78 firms that appeared to be the major importers of all types of steel fasteners covered by these

[Customs] subheadings.” Mem. of Def. U.S. ITC in Opp’n to Pl.’s Mot. for J. on the Agency R.,

D.E. 45, at 30–31 (“Def.’s Mem.”). The ITC was thus able to “determine that they had received

data from the large majority of significant known imports of fasteners from China and Taiwan”

during the period of interest, which indicated that they had proper coverage for importers who

likely imported CSSF. Id. at 31. The court called the ITC’s contention “entirely post hoc,”

pointing out that the ITC “cite[d] no record evidence of any such comparison.” Nucor, 35 CIT at

__, 791 F. Supp. 2d at 1281. Moreover, the ITC’s argument was undermined by its assertion that

five of the six relevant Customs subheadings “contain[] large amounts of fasteners not subject to

these investigations.” Id. The court also questioned whether the ITC meant “significant known

importers” as opposed to “significant known imports,” but noted that the ITC’s response was

unclear. Id.

Second, Nucor questioned how the thirty questionnaire responses demonstrated that a

small number of firms accounted for a significant share of CSSF imports, asserting that the data

merely showed that a small number of firms accounted for a large share of “reported” imports.

Pl.’s Mem. at 27. The ITC defended its views with staff conference testimony that “this industry

involved a limited number of large importers.” Def.’s Mem. at 31. However, the court Court No. 09-00531 Page 7

questioned the ITC’s response because it had not provided any record evidence even suggesting

an overlap between large importers that responded to the questionnaire and the large reporters

referenced at the staff conference. Nucor, 35 CIT at __, 791 F. Supp. 2d at 1281–82. Moreover,

the ITC did not explain how the sample of responding importers was demonstrative of the

“universe of relevant importers.” Id. at __, 791 F. Supp. 2d at 1282.

Third, Nucor questioned the ITC’s use of importer data as comprehensive, considering

that a comparison of U.S. importer responses to foreign producer responses indicated that

reported exporter volume exceeded the reported importer volume by a significant percentage.

Pl.’s Mem. at 27–30. The ITC cited a rough equivalence in the values because, although

reported imports were more inclusive than reported exports in Taiwan, the opposite was true in

China, thus resulting in “reported exports of subject merchandise to the United States in

collective quantities that are relatively similar to the quantities of subject merchandise imports

collectively reported by [domestic importers].” ITC Pub. 4109 at 7. The court rejected this

reasoning because the ITC offered “no explanation for how undercounting the exports of one can

remedy undercounting the imports of the other.” Nucor, 35 CIT at __, 791 F. Supp. 2d at 1282.

Moreover, the ITC did not provide any methodologies to support its assertion that it would arrive

at the same conclusion regardless of which combination of data sets it examined. Id.

In sum, the court concluded that the ITC had failed to provide a “reasoned basis” for

treating and relying on incomplete data as comprehensive, calling the ITC’s approach a “casual

conflation of a limited sample with the larger population from which that sample is drawn.” Id.

The basis upon which the ITC was required to draw its conclusion “must include at least a

candid recognition of and response to inherent limitations.” Id. at __, 791 F. Supp. 2d at 1285.

Therefore, the ITC’s treatment of the data amounted to a “complete failure ‘to consider an Court No. 09-00531 Page 8

important aspect of the problem.’” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

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

The court also remanded on the issue of the ITC’s reliance on Producer A’s response and

inclusion as a domestic CSSF importer. Nucor had challenged the ITC’s inclusion of four firms

that reported producing CSSF and argued that one of these firms (Producer A) did not produce

the domestic like product (CSSF) and should not be included as a member of the domestic

industry. Nucor claimed that Producer A’s response was unreliable because the response

suggested significant confusion. Pl.’s Mem. at 12–15, 17. For example, Producer A classified

the same fasteners as standard and nonstandard. Moreover, when asked whether it “produce[d]

other products on the same equipment and machinery used in the production of CSSF,” Producer

A answered affirmatively but responded that CSSF accounted for 100 percent of its products. Id.

Subsequent correspondence between the ITC and Producer A showing that Producer A staff

were not familiar with the ITC’s definitions of CSSF and other fastener products also suggested

that the staff’s knowledge and ability to respond to the questionnaires was limited. Although the

ITC had asserted that it was “authorized to weigh evidence and resolve conflicts in the data,”

Def.’s Mem. at 18, the court found that the ITC did not demonstrate that it even considered any

discrepancies. Nucor, 35 CIT at __, 791 F. Supp. 2d at 1287. Therefore, there was no rational

basis for the unqualified inclusion of Producer A in the ITC’s analysis. Id.

On December 7, 2011, on remand, the ITC reaffirmed all of the findings from its original

negative preliminary determinations because neither of these remanded issues played more than

a small role in its overall analysis and determinations. Certain Standard Steel Fasteners from

China and Taiwan, USITC Pub. 4297, Inv. Nos. 701-TA-472 and 731-TA-1171 (Preliminary) Court No. 09-00531 Page 9

(Remand) (Dec. 2011), D.E. 91, at 11 (“Remand Results”).1 It again concluded that there is no

reasonable indication that an industry in the United States is materially injured or threatened with

material injury by reason of subject CSSF imports from China and Taiwan. Id.

STANDARD OF REVIEW

“The court will sustain the Department’s determination upon remand if it complies with

the court’s remand order, is supported by substantial evidence on the record, and is otherwise in

accordance with law.” Jinan Yipin Corp. v. United States, 33 CIT __, __, 637 F. Supp. 2d 1183,

1185 (2009) (citing 19 U.S.C. § 1516(b)(1)(B)(i) (2000)).

DISCUSSION

I. The record supports the ITC’s using its import questionnaire data as “comprehensive” The court concluded that the ITC had failed to provide a “reasoned basis” for treating and

relying on incomplete data as comprehensive, calling the ITC’s approach a “casual conflation of

a limited sample with the large population from which the sample is drawn.” Nucor, 35 CIT at

__, 791 F. Supp. 2d at 1283. The court noted that the ITC’s conclusion “must include at least a

candid recognition of and response to inherent limitations” in its data and methodology. Id. at

__, 791 F. Supp. 2d at 1285. Therefore, the ITC’s treatment of the data amounted to a “complete

failure ‘to consider an important aspect of the problem.’” Id. (quoting Motor Vehicle Mfrs.

Ass’n, 462 U.S. at 43 (1983)).

On remand, after comparing the importer questionnaire data to Customs’s import data,

other record data concerning the relative size and number of importers in the industry, and

foreign producer questionnaire data, the ITC again deemed importer questionnaire data

1 The Remand Results are also available online at http://www.usitc.gov/publications/701_731/pub4297.pdf. However, because the Remand Results published online have different pagination from those filed with the court, the court notes that all page numbers cited by the court refer to the Remand Results filed with the court. They are available as part of the public record, docket entry number 91. Court No. 09-00531 Page 10

comprehensive and reliable. For the reasons stated below, the court sustains the Commission’s

remand determinations.

A. The Record Supports Using Questionnaire Data on CSSF Imports from Subject and Non-Subject Countries The ITC argues that its use of importer questionnaire data is preferred over Customs’s

import data because the merchandise covered by the investigations could be classified under any

one of six statistical reporting numbers under the Harmonized Tariff Schedule of the United

States (“HTSUS”), with five out of the six numbers representing “basket” categories containing

numerous fasteners not subject to the investigations. Remand Results at 22–25. Moreover,

using only the sixth number would underestimate the volume of subject imports. Id. at 24. The

ITC states that Nucor itself has also counseled against using Customs’s import data, urging the

ITC to use importer questionnaire responses instead. Id. at 23. Additionally, the ITC

emphasizes that the Federal Circuit has given it broad discretion in making methodological

choices, and has routinely upheld the ITC’s use of importer questionnaire data, that need not be

complete. Id. at 22 (citing U.S. Steel Grp. v. United States, 96 F.3d 1352, 1357, 1361–62 (Fed.

Cir. 1996); Comm. for Fair Coke Trade v. United States, 28 CIT 1140, 1163 (2004); Sensient

Techs. Corp. v. United States, 28 CIT 1513, 1520–22 (2004).

Second, the ITC defends the process it used to collect the importer questionnaire data.

After obtaining Commerce’s official statistics (from its “Interactive Tariff and Trade DataWeb”)

on imports under the six HTSUS statistical reporting numbers that Nucor identified, the ITC

obtained specific import entry information for U.S. imports from subject and non-subject

countries for the six statistical reporting numbers (from Customs Net Import File CL202) and

issued importer (and foreign producer) questionnaires to firms that accounted for a significant

portion of imports (or exports) of all fastener types to the United States. Remand Results at 25– Court No. 09-00531 Page 11

26. Using the data it obtained from the file, ITC staff separated the importers into three groups

(“Groups A, B, and C”). Id. at 27. Group A consisted of firms representing greater than one

percent of total imports of fasteners from China and Taiwan under statistical reporting number

7318.15.2030, which Nucor identified as most closely resembling CSSF, in 2008 or January

through June 2009. Id. at 26–27. Group B included firms representing greater than one percent

of total imports of fasteners from China and Taiwan under the combined statistical reporting

numbers (7318.15.2030, 7318.15.2055, 7318.15.2065, 7318.15.8065, 7318.15.8085, and

7318.16.0085), which covered subject and non-subject CSSF, during the same time period. Id. at

28. Group C was comprised of firms that imported greater than one percent of the total imports

of the combined statistical reporting numbers from non-subject countries during the same period.

Id.

Although the ITC acknowledges that it never obtains perfect data on imports, foreign

producers, or the domestic industry in any investigation, it states that it routinely relies on this

data to make injury determinations because the statute, 19 U.S.C. §§ 1671b(a)(1)–(2), 1671b(f),

1673b(a)(1)–(2), 1673b(f), requires decisions to be made within a relatively short forty-five day

period based on information available at the time. Remand Results at 26–27. Moreover, the ITC

emphasizes that each of the steps taken is consistent with its regular practice in preliminary

injury investigations. Id. at 25–27.

Nucor argues that “the record did not bear out the [ITC’s] description of its

methodology,” pointing out that individual importers responsible for certain goods from China

and Taiwan during the relevant time periods were not included in the ITC’s questionnaire

mailing list, while importers responsible for minimal or no imports from China and Taiwan were

included. Nucor Fastener Div.’s Remand Comments, D.E. 102, at 16–19 (“Pl.’s Remand Court No. 09-00531 Page 12

Comments”). Moreover, Nucor points out “the still greater oddity of questionnaires being sent to

companies that did not meet the criteria.” Id. at 19. In response, the ITC refers back to its

extensive explanations regarding its methodologies for sending out the questionnaires in its

Remand Results, pointing out that it does not ordinarily specify whether and why it sent

questionnaires to specific firms. Def. U.S. ITC’s Reply to Nucor’s Response, D.E. 115, at 11

(“Def.’s Reply to Remand Comments”). Moreover, the ITC notes that Nucor did not inquire

about any of these specific firms at the remand proceedings and therefore failed to exhaust its

administrative remedies on this issue. Id. at 12. Accordingly, there is no need for another

remand for the ITC to explain the status of additional firms.

Although the ITC acknowledged that the data is not complete and that some

discrepancies existed, id. at 43, the court agrees with the ITC that the data was sufficiently

adequate to rely upon for purposes of the investigation.

B. There Is No Need to Proceed to a Final Investigation on the Import Data Issue In its Remand Comments, Nucor continues to assert that because the importer

questionnaire data was “spotty and unreliable,” additional import volumes and pricing data might

lead to a finding of greater underselling and import penetration than originally found. Pl.’s

Remand Comments at 39–40. Defendant-Intervenors respond that, although the import data may

not be comprehensive, the ITC has collected enough import data to reach a negative injury

determination and there is no need to proceed with a final investigation. Def.-Ints.’ Comments

on the Remand Det. of the U.S. ITC, D.E. 100, at 5 (“Def.-Ints.’ Remand Comments”). The ITC

correctly maintains that in preliminary investigations, the standard is not whether any additional

data could be collected in any final investigations, but instead whether the record as a whole

indicates a likelihood that contrary evidence leading to a different outcome could be obtained. Court No. 09-00531 Page 13

Remand Results at 44 (citing Co-Steel Raritan, Inc. v. United States, 357 F.3d at 1294, 1311,

1314–17) (Fed. Cir. 2004) (emphasis in original).

In its original views, the ITC found that regardless of which data sets it reviewed, it still

arrived at the same conclusion. Id. at 44. On remand, the ITC again asserts that it would reach a

negative injury determination even if it relied on the data set that showed the greatest number of

cumulated subject imports. Id. at 45. Moreover, the ITC’s findings regarding large but steady

subject import market share, steady domestic industry market share, no significant price

depression or suppression, and a profitable domestic industry despite significant underselling

would also remain the same. Id. Therefore, absent a reasonable indication of material injury or

threat thereof, there is no need to proceed with a final investigation to gather more

comprehensive data that will yield the same results. Id. at 46.

Nucor’s arguments are unavailing. The court remanded the issue of whether the record

supported the ITC’s import questionnaire data as comprehensive because the ITC had failed to

acknowledge the inherent limitations in its methodology and thus had failed to consider a critical

aspect of the problem. In its remand results, the ITC provided a detailed explanation of its

methodology, including why it chose to use importer questionnaire data over Customs data, how

it collected the data, and how it analyzed the data. Vitally, the ITC admitted that it never obtains

perfect data on imports, foreign producers, or the domestic industry in any investigation, given

the constraints of the statute (19 U.S.C. §§ 1671b(a)(1)–(2), 1671b(f), 1673b(a)(1)–(2), 1673b(f))

and its forty-five day limitation.

Nucor’s assertions regarding the ITC’s failure to include certain firms in its analysis and

the ITC’s failure to obtain perfect coverage in its samples miss the point of the court’s remand

instructions—to acknowledge that the ITC’s investigatory methods were imperfect. The ITC has Court No. 09-00531 Page 14

gone above and beyond in that regard, thereby nullifying any need to proceed with a final

investigation. The court therefore sustains the ITC’s remand redetermination that the record

supports using questionnaire data on imports into the United States of CSSF from subject and

non-subject countries.

II. The ITC’s Reliance on Producer A’s Questionnaire Response and Inclusion of Producer A as a Domestic Producer Was Not Unreasonable Although the ITC had asserted that it was “authorized to weigh evidence and resolve conflicts in

the data,” the court pointed out that the ITC did not properly show that it even considered any

discrepancies. Nucor, 35 CIT at __, 791 F. Supp. 2d at 1287. Therefore, there was no rational

basis for the unqualified inclusion of Producer A in the ITC’s analysis. Id.

The ITC again affirmed its findings that Producer A was properly included as a producer

of domestic like product. For the reasons stated below, the court sustains the ITC’s remand

redetermination.

A. The Record Supports Inclusion of Producer A as a Domestic Producer of CSSF

The ITC argues that the record supports the inclusion of Producer A as a domestic

producer for the following reasons. First, Producer A certified in its questionnaire response that

it is a producer of the domestic like product CSSF. Remand Results at 11. Although the court

concluded that Producer A appeared confused about the scope of the investigations, the ITC

argues that confusion as to scope is unlikely because Producer A’s officials candidly admitted

that they had not read the instructions at the time they filed the initial questionnaire response and

later submitted an amended questionnaire response with revised answers to several questions

pertaining to numerical data. Id. at 13–17. Second, the statute defines the domestic industry as

“the producers as a whole of a domestic like product or those producers whose collective output Court No. 09-00531 Page 15

of a domestic like product constitutes a major proportion of the total domestic production of the

product.” Id. at 11 (quoting 19 U.S.C. § 1677(4)(1)).

Nucor argues that Producer A makes only “Product X” (note: the remand comments have

redacted the name of the product), which falls outside of the scope of the investigations. Pl.’s

Remand Comments at 37–38. Moreover, the court faulted Producer A for classifying the same

fasteners as both standard and nonstandard (within scope and outside of scope). Nucor, 35 CIT

at __, 791 F. Supp. 2d at 1286. In response, the ITC argues that Producer A’s statement that it

produces fasteners used for a certain purpose (outside of scope) does not indicate that it is not a

producer of CSSF because Producer A reported revised allocations for U.S. shipments of CSSF

and non-CSSF producers upon clarification with the ITC and its previous responses were given

at a point when Producer A’s officials had not read the instructions or coordinated with one

another. Remand Results at 15–16.

Finally, the ITC argues that it is entitled to rely on a firm’s certified statements about its

own internal operations and to weigh evidence and resolve conflicts in the data. Id. at 11, 17.

Despite Nucor’s different readings of the scope language and its showing that Producer A did not

revise its answer to every question in its amended response, the ITC found that the record as a

whole warrants relying on Producer A’s certified statements that it produced at least some CSSF

and therefore including it as a domestic producer. Id. at 17.

B. Producer A accounts for such a small portion of domestic CSSF that its inclusion will not meaningfully affect the data, data trends, or the ITC’s causation analysis

On remand, the ITC explains that because Producer A accounts for such a small fraction of

domestic CSSF production, inclusion (or exclusion) would not change the outcome of the

negative injury determination. Id. at 18. It points out that even the court acknowledged that the

market share and operating margin data may suggest that the ITC might have reached the same Court No. 09-00531 Page 16

negative preliminary injury determinations had the agency excluded, qualified, or questioned all

of Producer A’s data. Id. (referring to Nucor, 35 CIT at __, 791 F. Supp. 2d at 1287, n.30).

Nucor argues that including Producer A in the domestic industry would “meaningfully alter[] the

picture of the U.S. industry.” Pl.’s Remand Comments at 39. After considering the record data

with and without Producer A in the domestic industry, the ITC found that Producer A’s presence

or absence had no meaningful impact on the data or trends (e.g., domestic industry production,

shipments, operating income, operating margins) or causation analysis (e.g., stable market

shares, no effect on underselling or lack of significant price depression). Remand Results at 18.

Therefore, the ITC concluded that there is no need to proceed with a final investigation.

Nucor’s arguments are unconvincing. The court remanded this issue because the ITC did

not properly show that it even considered any discrepancies in its questionnaire responses.

Nucor points specifically to the fact that Producer A submitted a response that contained

conflicting answers. In its remand results, the ITC addressed Producer A’s original response,

explaining that it was completed prior to Producer A’s officials having read the directions or

conferred with one another. Moreover, having noted the inconsistencies in Producer A’s

response, the ITC requested that Producer A submit an amended questionnaire response with

revised answers to several questions containing numerical data. Because the ITC has

demonstrated that it did indeed consider discrepancies in Producer A’s original questionnaire

response, the ITC has adequately addressed the court’s remand instructions. There is no need for

any further investigation on this issue. The court therefore sustains the ITC’s redetermination on

remand that Producer A was properly included in its import data as a domestic producer of

CSSF. Court No. 09-00531 Page 17

CONCLUSION AND ORDER

Upon consideration of the remand redetermination filed by the ITC, the comments filed

by Plaintiff and the Defendant-Intervenors, the reply filed by the Defendant, all other pertinent

papers, and oral argument, it is hereby

ORDERED that the ITC’s remand redetermination is SUSTAINED; it is further

ORDERED that judgment is entered for the United States.

/s/ Richard W. Goldberg Richard W. Goldberg United States Judge

New York, N.Y.