AK Steel Corporation et al v. United States International Trade Commission

Slip Op. 16 - 108
UNITED STATES COURT OF INTERNATIONAL TRADE
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AK STEEL CORPORATION, ALLEGHENY LUDLUM, 	:
LLC d/b/a ATI FLAT ROLLED PRODUCTS,
and UNITED STEELWORKERS, 	:
:
Plaintiffs,
:
v.
:
UNITED STATES INTERNATIONAL TRADE 	Consolidated
COMMISSION, 	: 	Court No. 14-00220
PUBLIC VERSION
Defendant, 	:
-and- 	:
THYSSENKRUPP ELECTRICAL STEEL GmbH, ABB 	:
INC., NIPPON STEEL & SUMITOMO METAL
CORPORATION, and JFE STEEL CORPORATION, 	:
:
Intervenor-Defendants.
- - - - - - - - - - - - - - - - - - - - -x
Opinion & Order
[Plaintiffs’ motion for judgment on agency record,
contesting negative material-injury determinations
based thereon, denied; 	action dismissed.]
Decided: November 23, 2016
David 	A. 	Hartquist, 	John 	M. 	Herrmann, 	Grace 	W. 	Kim, 	and
Benjamin Blase Caryl, Kelley Drye & Warren LLP, Washington, D.C.,
for the plaintiffs.
Dominic 	L. 	Bianchi, 	General 	Counsel, 	Andrea 	C. 	Casson,
Assistant 	General 	Counsel 	for 	Litigation, 	and 	Rhonda 	M. 	Hughes,
Attorney-Advisor, 	Office 	of 	General 	Counsel, 	U.S. 	International
Trade Commission, Washington, D.C., for the defendant.
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J. 	Kevin 	Horgan 	and 	Marc 	E. 	Montalbine, 	deKieffer 	& 	Horgan,
PLLC, 	Washington, 	D.C., 	for 	intervenor-defendant 	ThyssenKrupp
Electrical Steel GmbH.
John 	D. 	Greenwald 	and 	Ulrika 	K. 	Swanson, 	Cassidy 	Levy 	Kent
(USA) LLP, Washington, D.C., for intervenor-defendant ABB Inc.
Donald 	Harrison, 	Gibson, 	Dunn 	& 	Crutcher 	LLP, 	Washington,
D.C., 	for 	intervenor-defendant 	Nippon 	Steel 	& 	Sumitomo 	Metal
Corporation.
Robert Huey, Gregory Husisian, David Hickerson, and Morgan J.
West, Foley Lardner LLP, Washington, D.C., for intervenor-defendant
JFE Steel Corporation.
AQUILINO, 	Senior 	Judge: 	This 	consolidated 	action
challenges the final negative determinations of the United States
International 	Trade 	Commission 	(“ITC” 	or 	“Commission”) 	that
imported 	grain 	oriented 	electrical 	steel 	(“GOES”) 	did 	not
materially 	injure, 	or 	threaten 	material 	injury 	to, 	the 	U.S.
domestic industry. 	See GOES From Germany, Japan, and Poland, Inv.
Nos. 731-TA-1233, -1234, -1236 (USITC Pub. 4491, Sept. 2014), and
GOES From China, Czech Republic, South Korea, and Russia, Inv. Nos.
701-TA-505 and 731-TA-1231, -1232, -1235, -1237 (USITC Pub. 4500,
Nov. 2014), published respectively at 79 Fed.Reg. 54744 (Sept. 12,
2014) and 79 Fed.Reg. 66739 (Nov. 10, 2014), as further articulated
in 	Confidential 	Views 	of 	the 	Commission 	(“Views”) 	and 	ITC 	Final
Proprietary 	Staff 	Report 	dated 	August 	14, 	2014 	(incorporating
revisions of Aug. 20, 2014) (“Staff Report”).
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According to the agency record developed, that domestic
industry 	is 	comprised 	of 	two 	manufacturers, 	AK 	Steel 	Corporation
and 	Allegheny 	Ludlum, 	LLC, 	which 	have 	filed 	complaints 	in 	this
consolidated action pursuant to 19 U.S.C. §1516a(a)(2)(A)(i)(I) and
(B)(ii) and 28 U.S.C. §1581¥c¦ along with the United Steelworkers.
Together 	as 	parties 	plaintiff, 	they 	have 	interposed 	a 	motion 	for
judgment on that record in accordance with USCIT Rule 56.2.
I
The 	papers 	filed 	in 	support 	of 	that 	motion 	(and 	in
opposition 	thereto) 	show 	that 	GOES 	is 	a 	flat-rolled 	alloy 	steel
product 	with 	a 	chemistry 	that 	facilitates 	the 	formation 	of 	large
grains 	during 	production 	that 	align 	uniformly 	in 	the 	rolling
direction 	(lengthwise) 	of 	steel 	sheet. 	Such 	grains 	enable 	the
steel to conduct a magnetic field with a high degree of efficiency,
relative to other steels.
GOES 	is 	particularly 	suitable 	for 	the 	manufacture 	of
cores for transformers used in connection with the generation and
transmission of electricity. 	It is produced with different levels
of 	“permeability”, 	i.e., 	the 	degree 	of 	efficiency 	with 	which 	the
steel can conduct a magnetic field.
“Conventional” 	grades 	of 	GOES 	have 	smaller, 	but 	less
precisely 	oriented, 	grains. 	They 	are 	typically 	referred 	to 	by
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grades 	established 	by 	the 	American 	Iron 	and 	Steel 	Institute 	that
range 	from 	M-2 	to 	M-6, 	with 	M-2 	being 	the 	thinnest 	gauge 	(0.007
inches or 0.18 millimeters (“mm”)) and most efficient material, and
M-6 being the thickest gauge (0.0138 inches or 0.35 mm) and least
efficient.
"High-permeability” 	GOES 	has 	larger, 	more 	precisely
oriented, 	grains 	that 	result 	in 	greater 	efficiencies 	(lower
operating 	losses) 	relative 	to 	conventional 	grades.
High-permeability 	GOES 	may 	also 	be 	subjected 	to 	certain 	surface
treatments 	(known 	as 	domain 	refining) 	that 	further 	enhance
efficiency.
AK Steel produces both conventional and high-permeability
grades. 	Allegheny 	Ludlum 	produces 	conventional 	grades 	and 	was
working 	in 	2013 	to 	develop 	the 	capacity 	to 	produce
high-permeability GOES in commercial quantities. 	They concurrently
filed 	antidumping- 	and 	countervailing- 	duty 	petitions 	with 	the
International 	Trade 	Administration, 	U.S. 	Department 	of 	Commerce
(“ITA”) and the Commission, alleging that (1) imports of GOES from
China, the Czech Republic, Germany, Japan, Korea, Poland and Russia
were being sold in the United States at less than fair value; (2)
manufacturers, 	producers 	or 	exporters 	of 	GOES 	in 	China 	were
receiving 	countervailable 	subsidies; 	and 	(3) 	such 	imports 	were
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materially 	injuring 	and 	threatening 	to 	injure 	the 	domestic 	GOES
industry. 1
Preliminarily, the Commission determined that there was
a 	reasonable 	indication 	that 	the 	U.S. 	industry 	was 	materially
injured 	by 	reason 	of 	imports 	of 	GOES 	from 	the 	seven 	subject
countries. 	See 	GOES 	from 	China, 	Czech 	Republic, 	Germany, 	Japan,
Korea, 	Poland, 	and 	Russia, 	Inv. 	Nos. 	701-TA-505 	and
731-TA-1231-1237 (Prelim.), USITC Pub. 4439 (Nov. 2013), PDoc 91.
Concurrently, 	ITA 	determined 	that 	imports 	of 	GOES 	from 	each 	of
those countries were being sold at “less than fair value” (“LTFV”)2
1 	Upon 	receipt 	of 	such 	petition(s), 	ITC’s 	role 	is 	to
determine whether material injury or threat of such injury to the
domestic industry is indeed the case by reason of imported sales of
subject 	merchandise 	or 	the 	likelihood 	of 	such 	sales. 	19 	U.S.C.
§1673d(b)(1). 	See, e.g., Gerald Metals, Inc. v. United States, 132
F.3d 	716, 	719 	(Fed.Cir. 	1997). 	“[B]y 	reason 	of” 	subject 	imports
means 	“not 	by 	reason 	of 	a 	minimal 	or 	tangential 	contribution 	to
material 	harm 	caused 	by” 	such 	imports. 	Mittal 	Steel 	Point 	Lisas
Ltd. v. United States, 542 F.3d 867, 873 (Fed.Cir. 2008), quoting
id. 	The Commission evaluates the volume of subject imports, their
effect 	upon 	prices 	in 	the 	U.S. 	market 	for 	the 	domestic 	like
product, 	and 	their 	impact 	on 	domestic 	producers’ 	“production
operations” 	in 	the 	context 	of 	the 	U.S. 	market. 	19 	U.S.C.
§1677(7)(B)(i).
2 	Plaintiffs’ 	papers 	emphasize 	that 	ITA’s 	final 	LTFV
margins ranged from 3.68% for subject merchandise from the Republic
of 	Korea 	to 	241.91% 	for 	such 	merchandise 	from 	Germany. 	See 	GOES
From the People’s Republic of China: Final Determination of Sales
at 	LTFV, 	79 	Fed.Reg. 	59226, 	59227 	(Dep’t 	Commerce 	Oct. 	1, 	2014);
GOES 	From 	the 	Republic 	of 	Korea: 	Final 	Determination 	of 	Sales 	at
LTFV, 79 Fed.Reg. 59224, 59225 (Dep’t Commerce Oct. 1, 2014); GOES
(continued...)
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within the meaning of section 733(b) of the Tariff Act of 1930, as
amended, 19 U.S.C. §1673b(b).
For the final phase, ITC determined that there had been
price 	underselling 	of 	subject 	merchandise 	in 	the 	United 	States
during 	the 	period 	of 	investigation 	(“POI”), 	which 	the 	parties 	do
not dispute, but the Commission’s final determination, by a vote of
5 	to 	1, 	was 	that 	underselling 	did 	not 	have 	significant 	adverse
price effects during the POI. 	See Views at 35.
That 	is, 	after 	consideration 	and 	analysis 	of 	the
statutory factors of volume of GOES, domestic and imported, and the
price effects of the subject imports, as set forth in their Views,
pp. 	26-41, 	the 	majority 	of 	commissioners 	found 	that 	most 	of 	the
industry’s trade, employment, and financial indicators deteriorated
over the POI due to a combination of output-related (e g., loss of
2 	(...continued)
From the Russian Federation: Final Determination of Sales at LTFV
and Final Affirmative Determination of Critical Circumstances, 79
Fed.Reg. 59223, 59223 (Dep’t Commerce Oct. 1, 2014); GOES From the
People’s Republic of China: Final Affirmative Countervailing Duty
Determination, 	79 	Fed.Reg. 	59221, 	59222 	(Dep’t 	Commerce 	Oct. 	1,
2014); GOES From the Czech Republic: Final Determination of Sales
at 	LTFV 	and 	Final 	Affirmative 	Determination 	of 	Critical
Circumstances, 79 Fed.Reg. 58324, 58325 (Dep’t Commerce Sept. 29,
2014); GOES From Germany, Japan, and Poland: Final Determinations
of 	Sales 	at 	LTFV 	and 	Certain 	Final 	Affirmative 	Determination 	of
Critical 	Circumstances, 	79 	Fed.Reg. 	42501, 	42502 	(Dep’t 	Commerce
July 22, 2014).
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export 	shipments, 	higher 	unit 	costs 	due 	to 	less 	production) 	and
adverse 	revenue 	effects 	(i.e., 	reduced 	prices 	due 	to 	lower 	raw
materials costs, unused capacity, and intra-industry competition).
See Views at 42-43. 	They concluded, however, that those conditions
were 	due 	to 	the 	decline 	in 	exports, 	resulting 	in 	underutilized
capacity and more intense competition over market share, and that
subject 	imports 	“did 	not 	take 	significant 	market 	share 	away 	from
the 	domestic 	industry 	and 	also 	did 	not 	have 	significant 	price
effects”. 	Id. 	at 	42. 	Because 	the 	domestic 	industry’s 	total
capacity remained the same throughout the POI and also because its
market share remained essentially stable while domestic shipments
increased, 	ITC 	did 	not 	find 	the 	domestic 	industry 	to 	have 	been
materially injured by reason of the subject imports. 	See id.
Recognizing 	the 	existence 	of 	potential 	differences
between the industries in the subject countries (especially between
Japan and the others), ITC found reasonable overlap of competition
among subject imports from all seven, and between subject imports
from 	each 	country 	and 	the 	domestic 	like 	product; 	therefore, 	it
exercised 	its 	discretion 	to 	cumulate 	subject 	imports 	from 	all 	of
them. 	See 	id. 	at 	47. 	Based 	thereon, 	it 	found 	no 	threat 	of
material injury by reason of subject imports, as it found no record
evidence 	that 	the 	trending 	increase 	in 	subject 	import 	volume 	and
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market 	share 	(and 	the 	reasons 	therefor) 	would 	change 	in 	the
imminent future. 	It also found no evidence on the record that any
increase 	in 	subject 	imports 	would 	likely 	affect 	the 	domestic
industry adversely in the imminent future, inasmuch as increasing
imports had not adversely affected the domestic industry, and that
the 	increasing 	demand 	over 	the 	POI 	and 	the 	conditions 	of
competition in the U.S. market were unlikely to change appreciably
(from the perspective of the time of ITC’s investigation). 	See id.
at 48-49.
ITC 	also 	found 	that 	capacity 	in 	the 	cumulated 	subject
countries, although high both absolutely and relative to apparent
U.S. 	consumption, 	increased 	over 	the 	POI 	and 	was 	projected 	to
increase further. 	Unused capacity was greater in interim 2013 than
in interim 2014, and was projected to decline further in 2014 and
further 	still 	in 	2015. 	Production 	increased 	over 	the 	period 	and
was 	expected 	to 	increase 	in 	2014 	and 	2015. 	See 	id. 	at 	49. 	The
Commission 	noted 	that 	a 	rather 	high 	portion 	of 	the 	aggregate
production of GOES in the subject countries was used to meet their
respective 	home 	markets’ 	demand. 	Shipments 	to 	the 	home 	markets
increased 	over 	the 	period, 	which 	ITC 	expected 	to 	continue 	to
increase. 	Exports 	to 	other 	markets 	increased 	between 	2011 	and
2013, 	and 	were 	projected 	to 	increase 	in 	the 	future 	as 	well. 	The
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ratio of subject export shipments to the United States as a share
of 	total 	shipments 	was 	steady 	throughout 	the 	period 	and 	was
projected to remain so in the future.
ITC 	found 	that 	the 	data 	indicated 	the 	United 	States 	is
not a principal export market for the cumulated subject industries.
In 	view 	of 	the 	subject 	industries’ 	projection 	of 	increasing
shipments 	to 	the 	home 	markets 	and 	exports 	to 	other 	countries 	and
their 	very 	limited 	reliance 	on 	the 	U.S. 	export 	market, 	the
Commission 	found 	that 	significantly 	increased 	imports 	of 	the
subject merchandise into the United States were not likely in the
then-imminent future. 	Although ITC recognized that U.S. prices for
GOES have been and will likely continue to be higher than prices in
other markets, it indicated that this is not a factor that led the
subject industries to direct an appreciably larger share of their
export shipments to the United States from 2011 to 2013, and there
was, at the time, no indication in the record that this is likely
to change, i.e., even if subject imports from the cumulated subject
countries were to increase, ITC did not find that any such increase
would 	likely 	threaten 	material 	injury 	to 	the 	domestic 	industry
given 	that 	the 	significance 	of 	the 	volume 	of 	subject 	imports 	did
not 	cause 	material 	injury 	to 	the 	domestic 	industry 	over 	the 	POI.
See Views at 49-50.
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The 	Commission 	recognized 	that 	China 	(“PRC”) 	imposed
antidumping 	duties 	on 	GOES 	from 	Russia 	that 	became 	effective 	in
2010, 	but 	it 	emphasized 	that 	those 	duties 	were 	already 	in 	effect
throughout 	the 	POI. 	Also, 	while 	the 	Indian 	Steel 	Ministry 	was
reported to have effectively banned imports of low-grade electrical
steel 	in 	June 	2011, 	the 	record 	did 	not 	indicate 	that 	such
restriction 	resulted 	in 	diverting 	a 	volume 	of 	subject 	imports 	to
the 	United 	States 	that 	materially 	injured 	the 	domestic 	industry
during 	the 	period, 	nor 	was 	there 	any 	indication 	that 	this 	would
change 	in 	the 	imminent 	future. 	See 	id. 	at 	51. 	U.S. 	importers’
inventories also fell over the POI, and although inventories of the
subject 	merchandise 	held 	in 	the 	subject 	countries 	increased 	from
2011 	to 	2013, 	they 	were 	also 	projected 	to 	decline 	in 	the 	future.
See id.
With 	regard 	to 	likely 	price 	effects, 	ITC 	found 	that,
notwithstanding prevalent underselling, the subject imports did not
have a significant adverse effect on prices for the domestic like
product and that the domestic industry was therefore not materially
injured 	by 	reason 	thereof. 	See 	id. 	at 	52. 	ITC 	also 	found 	that,
while some continued increase in subject import volume might occur
in 	the 	imminent 	future, 	any 	such 	increase 	would 	likely 	not 	be
significant 	nor 	be 	sufficient 	to 	have 	any 	adverse 	effects 	on 	the
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domestic industry because imports of the subject merchandise were
unlikely 	to 	enter 	at 	prices 	that 	would 	be 	likely 	to 	have 	a
significant depressing or suppressing effect on domestic prices or
to 	increase 	demand 	for 	more 	imports. 	See 	id. 	Moreover, 	having
found 	no 	significant 	causal 	relationship 	between 	the 	subject
imports 	and 	the 	domestic 	industry’s 	performance 	during 	the 	POI,
notwithstanding the domestic industry’s declines in performance and
operating 	income 	levels, 	the 	Commission 	had 	little 	reason 	to
believe 	that 	any 	further 	deterioration 	of 	the 	condition 	of 	the
domestic 	industry 	would 	be 	“by 	reason 	of” 	the 	subject 	imports 	in
the imminent future. 	See id. 	ITC also found that subject imports
had not had significant actual or potential negative effects on the
existing 	development 	and 	production 	efforts 	of 	the 	domestic
industry, 	including 	efforts 	to 	develop 	a 	derivative 	or 	more
advanced version of the domestic like product. 	See id. at 53.
II
The court necessarily has perused plaintiffs’ submissions
contesting 	ITC’s 	determinations 	as 	well 	as 	those 	filed 	by 	the
intervenor-defendants in support thereof. 	The content quality of
all the papers is such as to obviate the burdening of the parties
with oral argument, and the motion therefor can be, and it hereby
is, 	denied. 	Moreover, 	the 	papers 	contain 	business 	confidential
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information 	that 	need 	not 	be 	recited 	or 	referred 	to 	herein, 	save
two 	“dramatic” 	events 	that 	occurred 	during 	the 	period 	of
investigation. 	See Opposition of intervenor-defendants JFE Steel
Corporation 	and 	Nippon 	Steel 	& 	Sumitomo 	Metal 	Corporation
(“JFE/NS&SM”) at 3-4.
A
Judicial 	review 	examines 	whether 	a 	determination 	is
supported by substantial evidence on the administrative record and
is 	in 	accordance 	with 	law, 	which 	necessarily 	frames 	the 	issues.
See 	19 	U.S.C. 	§1516a(b)(1)(B)(i). 	If 	the 	record 	contains 	“such
relevant evidence as a reasonable mind might accept as adequate to
support 	a 	conclusion” 3 , 	taking 	into 	account 	the 	entire 	record,
including whatever “fairly detracts”, then the determination must
be 	sustained. 	E.g., 	Atlantic 	Sugar, 	Ltd. 	v. 	United 	States, 	744
F.2d 1556, 1562 (Fed.Cir. 1984). 	If an 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” 4 , 	that 	is 	sufficient, 	for 	“two 	inconsistent
conclusions 	from 	the 	evidence 	does 	not 	prevent 	an 	administrative
3 	Consolidated 	Edison 	Co. 	v. 	NLRB, 	305 	U.S. 	197, 	229
(1938).
4 	Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)(internal quotation marks deleted).
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agency’s 	finding 	from 	being 	supported 	by 	substantial 	evidence.”
Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966).
ITC 	is 	also 	presumed 	to 	have 	considered 	all 	of 	the
information 	in 	the 	administrative 	record. 	E.g., 	Granges
Metallverken AB v. United States, 13 CIT 471, 479, 716 F.Supp. 17,
24 	(1989). 	In 	other 	words, 	even 	if 	the 	record 	contains 	some
evidence 	to 	which 	a 	complainant 	can 	point 	that 	tends 	to 	detract
from 	an 	administrative 	conclusion, 	that 	does 	not, 	necessarily,
render the conclusion unreasonable. 	E.g., Atlantic Sugar, 744 F.2d
at 1563.
(i)
The plaintiffs first contend ITC’s price effects analysis
is 	not 	supported 	by 	substantial 	evidence 	on 	the 	record. 	The
relevant statute requires consideration of whether (1) “there has
been 	significant 	price 	underselling 	by 	the 	imported 	merchandise
relative 	to 	the 	price 	of 	products 	manufactured 	in 	the 	United
States” 	and 	(2) 	whether 	“the 	effects 	of 	subject 	imports 	have
depressed prices, or prevented price increases that otherwise would
have occurred, to a significant degree”. 19 U.S.C. §1677(7)(C)(ii).
The plaintiffs argue that the price effects analysis is undermined
by the fact that ITC merely acknowledged the “direct importer” data
but otherwise ignored them and relied only upon the “traditional”
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pricing data. 	Compare Plaintiffs’ Memorandum of Law at 21-23 with
Views at 35-37. 	They claim it was erroneous for the agency not to
have 	considered 	the 	direct 	importer 	data 	“in 	tandem” 	with 	the
“traditional” data, and they tabulate those record data on page 23
of their brief, referencing Staff Report, V-9 to V-16 & Appx. D at
D-6 to D-15, CDoc 254. 	See also Plaintiffs’ Reply, p. 7.
The 	Views 	indicate 	that, 	while 	those 	data 	do 	indicate
that 	subject 	imports 	were 	priced 	lower 	than 	the 	domestic 	like
product 	in 	17 	of 	30 	comparisons 	for 	imports 	from 	Japan, 	25 	of 	28
comparisons for imports from Poland, and seven of eight comparisons
for imports from Russia, ConfRec at D-3 to D-4, PubRec at D-3, they
already acknowledged that lower prices are prevalent in the price
comparisons. 	Moreover, 	for 	the 	highest 	volume 	of 	shipments 	of
U.S.-produced product, 4b, the incidence of higher and lower prices
is mixed. See CR/PR, Table D-5. The volumes of imports involved in
these 	comparisons 	are 	quite 	small. 	When 	compared 	to 	the 	subject
imports 	that 	are 	not 	directly 	imported 	by 	end 	users, 	those 	few
direct purchases could not have led the prices of the domestic like
product 	downward. 	Views 	at 	40 	n. 	150, 	referencing 	Appendix 	D 	to
the Staff Report.
The plaintiffs contend that the percent of total subject
imports represented by the direct importer data volume can hardly
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be characterized as “quite small” given that ITC acknowledged the
“significance” 	of 	the 	percentages 	as 	compared 	with 	shipments 	of
subject merchandise from the U.S. producers and from Japan, Poland
and 	Russia; 	that 	the 	direct 	importer 	data 	account 	for 	a 	sizeable
percent 	of 	the 	total 	volume 	of 	pricing 	data 	on 	the 	subject
imports 5 ; 	that 	ITC 	has 	found 	significant 	injurious 	effects 	in
several recent investigations involving even lower U.S. shipments
of 	imports 6 ; 	and 	that 	“quite 	small” 	is 	“directly 	at 	odds” 	with
ITC’s findings that the direct importer data accounted for sizeable
percentages of total reported subject imports from Japan, Poland,
and 	Russia 	during 	the 	POI. 	Plaintiffs’ 	Memorandum 	of 	Law 	at 	31,
referencing 	Views 	at 	32 	n. 	116. 	Furthermore, 	the 	plaintiffs
contend 	their 	tabulation 	confirms 	that 	the 	volume 	of 	the 	direct
5 	I.e., 	total 	subject 	import 	volume 	in 	Appendix D plus
total subject import volume reported in Section V. 	See Plaintiffs’
Memorandum of Law at 30 & n. 32.
6 	See id. at 31, referencing Calcium Hypochlorite From the
PRC, Inv. Nos. 701-TA-510 and 731-TA-1245 (Final), USITC Pub. 4515
(Jan. 2015) p. 17 (“[t]he pricing data accounted for approximately
. . . 21.3 percent of subject imports in 2013, with lower coverage
for subject imports in other years of the POI”); Multilayered Wood
Flooring From the PRC, Inv. Nos. 701-TA-476 and 731-TA-U79 (Final),
USITC 	Pub. 	4278 	(Nov. 	2011) 	p. 	27 	(“[p]ricing 	data 	reported 	by
these 	firms 	accounted 	for 	approximately 	. 	. 	. 	14 	percent 	of 	U.S.
shipments of imports from subject producers in [the PRC] in 2010”);
Aluminum 	Extrusions 	From 	the 	PRC, 	Inv. 	Nos. 	701-TA-475 	and
731-TA-1177 (Final), USITC Pub. 4229 (May 2011), p. 22 (“[p]ricing
data 	reported 	by 	these 	firms 	accounted 	for 	approximately 	four
percent of 2010 U.S. shipments of subject imports from [the PRC]”).
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importer data exceeds the comparable “traditional” data for six out
of ten pricing products and that the volume of imports from Japan,
Poland 	and 	Russia 	covered 	by 	the 	direct 	importer 	data 	likewise
exceeds the comparable traditional pricing data.
The 	defendant 	maintains 	that 	the 	plaintiffs 	are
improperly asking the court to substitute judgment for it on such
matters. 	E.g., 	Defendant 	U.S. 	International 	Trade 	Commission’s
Opposition to Plaintiffs’ Motion for Judgment on the Agency Record
(“Defendant’s Response”) at 21, referencing Co-Steel Raritan, Inc.
v. 	Int’l 	Trade 	Comm’n, 	357 	F.3d 	1294, 	1309 	(Fed.Cir. 	2004) 	(the
“court is not empowered to substitute its judgment for that of the
agency”), 	and 	Nippon 	Steel 	Corp. 	v. 	Int’l 	Trade 	Comm’n, 	345 	F.3d
1379, 	1381 	(Fed.Cir. 	2003) 	(“[u]nder 	the 	statute, 	only 	[ITC] 	may
find 	the 	facts 	and 	determine 	causation 	and 	ultimately 	material
injury”). 	Indeed, 	the 	appellate 	court 	has 	recognized 	that 	it 	is
neither “surprising nor persuasive” that parties plaintiff are able
to 	point 	to 	“evidence 	of 	record 	which 	detracts 	from 	the 	evidence
which supports [ITC]’s decision” or can “hypothesize a reasonable
basis for a contrary determination”, Matsushita Elec. Indus. Co. v.
United 	States, 	750 	F.2d 	927, 	936 	(Fed.Cir. 	1984), 	and 	the
Commission 	here 	maintains 	that 	it 	“properly 	relied 	on 	price
comparisons that reflected equivalent stages of trade” as the “best
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information of record”, that the traditional data included end-user
overage, 	and 	that 	“inclusion” 	of 	the 	importer 	data 	in 	accordance
with plaintiffs’ arguments merely increases the amount of subject
import 	pricing 	data 	in 	percentage 	terms 	but 	does 	not 	render
unreasonable 	ITC’s 	“reliance 	on 	data 	showing 	head-to-head
competition between domestic and imported products.” 	Defendant’s
Response at 4, 25.
It has long been the rule that ITC’s determinations must
take 	“into 	account 	the 	entire 	record, 	including 	whatever 	fairly
detracts from the substantiality of the evidence”7 , and plaintiffs’
arguments 	do 	not, 	to 	this 	point, 	precisely 	show 	what 	it 	is 	about
the direct importer data that “fairly detracts” from ITC’s reliance
upon 	the 	traditional 	importer 	data 	in 	making 	its 	determination.
The plaintiffs have recast the record to their liking, but it can
not 	be 	concluded 	therefrom 	that 	the 	agency 	has 	not 	taken 	into
account the entire record or that its apparent assignment of less
weight 	to 	the 	direct 	importer 	data 	was 	unreasonable. 	As 	the
7 	Atlantic 	Sugar, 	supra, 	744 	F.2d 	at 	1562 	(footnote
omitted). 	For 	example, 	the 	direct 	importer 	data, 	covering
approximately 	[[ 	]] 	percent 	of 	U.S. 	producers’ 	shipments, 	would
also 	seem 	to 	have 	resulted 	from 	a 	form 	of 	“head-to-head”
competition. 	Nonetheless, ITC’s “presumptive awareness” is of ABB
Inc.’s 	position 	of 	paying 	“premium” 	prices 	for 	domestic 	sources,
which 	appears 	to 	be 	indication 	of 	willingness 	to 	engage 	in 	less
“vigorous” competition.
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defendant 	points 	out, 	the 	traditional 	pricing 	data 	encompass 	the
majority of pricing data from four subject countries and at least
some 	of 	the 	data 	from 	all 	countries, 	and 	plaintiffs’ 	own
calculations 	show 	that 	the 	subject 	import 	volumes 	for 	pricing
products 	1a, 	1b, 	and 	2b 	remain 	“relatively” 	low 	even 	when 	the
direct import pricing data are included. 	It points out there are
no product 1a direct imports, product 1b would show relatively few
short 	tons 	among 	the 	aggregated 	direct 	import 	and 	traditional
pricing data as compared to the short tons of domestically produced
product, 	and 	similarly 	for 	pricing 	product 	2b, 	i.e., 	imported
versus 	domestically 	produced 	short 	tons, 	respectively. 	Compare
Plaintiffs’ Memorandum of Law at 23 with Staff Report, Tables V-2,
V-3, V-5.
Having 	acknowledged 	“lower 	prices 	are 	prevalent 	in 	the
price comparisons”, ITC concluded that the “few” direct purchases
by 	end 	users 	as 	compared 	with 	their 	traditional 	pricing 	data
counterparts 	could 	not 	have 	led 	the 	prices 	of 	the 	domestic 	like
product 	downward. 	This 	court 	is 	not 	positioned, 	by 	law, 	to
overturn 	valid 	Commission 	factual 	findings 	or 	its 	reasonable
conclusions based thereon. 	See 19 U.S.C. §1516a(b)(1)(B)(I). 	For
that 	matter, 	contrary 	to 	plaintiffs’ 	argument, 	the 	significant
underselling 	that 	the 	direct 	importer 	data 	further 	reveal 	(in
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addition to that already indicated by the traditional pricing data)
does 	not 	“readily 	explain 	the 	pricing 	declines 	experienced 	by
domestic producers for those products.” 8
(ii)
The plaintiffs stress that ITC did not discuss product 3a
at all9 , a product that accounted for the second highest volume of
the ten pricing products and a greater volume than any of the three
products 	identified 	in 	the 	Views 	as 	reflecting 	“a 	significant
amount 	of 	competition 	between 	the 	domestic 	like 	product 	and 	the
subject 	imports” 	but 	which 	price 	declines 	ITC 	found 	to 	have 	been
“comparable to the decrease in raw material costs.” 	Views at 37.
The 	plaintiffs 	point 	out 	that 	the 	decline 	in 	domestic 	industry
prices 	for 	product 	3a 	was 	nearly 	[[ 	]] 	times 	larger 	than 	those
declines for products 2a, 4b, and 5b and that the absolute volume
of subject imports under product 3a was nearly [[ 	]] as great
8 	Plaintiffs’ 	Memorandum 	of 	Law 	at 	26. 	To support their
argument, the plaintiffs also tabulate the degrees of underselling
reflected in the direct importer data. 	See id. at 27, referencing
Staff 	Report, 	Appx. 	D. 	ITC 	is 	presumed, 	however, 	to 	have 	taken
such information into account.
9 	The plaintiffs also complain of a lack of discussion of
pricing 	product 	3b, 	but 	they 	focus 	their 	discussion 	on 	pricing
product 3a.
The 	defendant 	draws 	attention 	to 	the 	fact 	that 	the
volumes for 3b are “quite small”, and “the margins of overselling
significantly outweighed the margins of underselling.” 	Defendant’s
Response at 36 n. 30, referencing Staff Report, Table V-7.
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as the volume for 2a and approximately three times as high as the
volumes of products 4b and 5b reflected in the traditional importer
pricing data.
The defendant responds that it did not ignore detracting
evidence; the Commission’s discussion, verbatim, of price declines
is as follows:
Some 	of 	the 	pricing 	comparisons, 	such 	as 	for 	pricing
products 	2a, 	4b, 	and 	5b, 	involve 	volumes 	of 	subject
imports 	that 	compete 	directly 	with 	the 	most 	comparable
domestic like product. 	Other pricing comparisons, such
as 	for 	pricing 	products 	1a, 	1b, 	and 	2b, 	involve 	far
smaller volumes of subject imports.
Id. at 35-36 (emphasis added). 	In other words, it
did not state that these particular correlations applied
to all 10 pricing products. 	What is evident from what it
did 	state 	is 	that 	it 	examined 	all 	the 	pricing 	products
and found certain correlations and trends with regard to
specific 	products 	that 	indicated 	that 	subject 	imports
were not the cause of the domestic industry’s declining
prices. 	Given 	that 	the 	evidence 	pertaining 	to 	most 	of
the 	pricing 	products 	demonstrated 	these 	trends 	and
correlations, 	[it] 	was 	not 	obligated 	to 	explain 	away 	a
correlation 	with 	respect 	to 	one 	pricing 	product 	out 	of
10.
Defendant’s Response at 35-36.
The 	plaintiffs 	reply 	that 	product 	3a 	is 	precisely 	the
“one 	pricing 	product 	out 	of 	10” 	that 	contradicts 	the 	majority’s
conclusion 	that 	the 	pricing 	products 	with 	the 	highest 	volumes 	of
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subject imports had the smallest price declines.10 	They aver that
the 	price 	declines 	they 	suffered 	on 	product 	3a 	were 	highly
significant between the first quarter of 2011 and the first quarter
of 	2014,11 	and 	that 	the 	pricing 	information 	therefor 	“directly
contradicts” ITC’s analysis of products 2a, 4b and 5b, on which it
also found “there was a significant amount of competition between
the domestic like product and subject imports” and upon which ITC
relied “so heavily” in concluding there was no connection between
the 	price 	declines 	suffered 	by 	the 	domestic 	industry 	and 	the
subject 	imports. 12 	The 	plaintiffs 	argue 	the 	absence 	of 	any
10 	The plaintiffs contend product 3a reflected the highest
volume of subject imports in direct competition with the comparable
domestic industry product of any of the products in the traditional
importer 	pricing 	database 	on 	which 	the 	ITC 	majority 	based 	its
pricing 	analysis. 	Subject 	imports 	of 	this 	product 	accounted 	for
fully 	[[ 	]] 	percent 	of 	the 	total 	volume 	of 	all 	cumulated 	subject
imports. 	See 	Plaintiffs’ 	Memorandum 	of 	Law 	at 	23. 	In 	their
opinion, subject import volumes of product 3a were significant in
absolute 	volume 	and 	in 	relation 	to 	domestic 	consumption 	thereof,
with a total subject import volume of [[ ]] short tons as compared
to 	total 	domestic 	producer 	shipments 	of 	[[ 	]] 	short 	tons, 	i.e.,
[[ 	]] 	percent 	of 	domestic 	consumption 	of 	the 	product. 	See 	Staff
Report 	at 	V-10. 	Further, 	they 	argue 	underselling 	by 	the 	subject
imports 	of 	pricing 	product 	3a 	was 	predominant, 	occurring 	in 	a
majority of possible comparisons. 	See id. at V-13.
11 	See Staff Report at V-13 and V-27.
12 	I.e., because price declines for products 2a, 4b and 5b
were “comparable to the decrease in raw material costs.” 	Views at
37. See Plaintiffs’ Reply at 11. They emphasize that the decline in
the domestic industry’s prices for product 3a was nearly two times
larger 	than 	those 	for 	products 	2a, 	4b 	and 	5b, 	and 	the 	absolute
(continued...)
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discussion of import volumes and pricing trends for product 3a in
the 	Views 	majority 	opinion 	amounts 	to 	“a 	grievous 	oversight
indicative of an unwillingness to consider evidence detracting from
its finding that the subject imports were not a cause of the price
depression suffered by the domestic industry.” 	Plaintiffs’ Reply
at 11-12.
The plaintiffs further contend that, for the defendant to
respond that it “did not state that these particular correlations
applied 	to 	all 	10 	pricing 	products” 	but 	that 	it 	nevertheless
“examined all the pricing products and found certain correlations
and 	trends 	with 	regard 	to 	specific 	products 	that 	indicated 	that
subject 	imports 	were 	not 	the 	cause 	of 	the 	domestic 	industry’s”
declining prices amounts to post hoc rationalization. 	See Usinor
Industeel S.A. v. United States, 26 CIT 467, 478 (2002) (“‘[w]here
an explanation is lacking on the record, post hoc rationalization
for [the Commission’s] actions is insufficient’ and remand may be
appropriate 	for 	further 	explanation”) 	(quoting 	The 	Timken 	Co. 	v.
United 	States, 	20 	CIT 	1115, 	1118, 	937 	F.Supp. 	953, 	955 	(1995)).
12 	(...continued)
volume 	of 	product 	3a 	imports 	was 	nearly 	twice 	as 	great 	as 	the
volume for product 2a, and approximately three times as high as the
volumes 	for 	4b 	and 	5b 	in 	the 	traditional 	importer 	pricing 	data.
Plaintiffs’ 	Memorandum 	of 	Law 	at 	23, 	referencing 	Staff 	Report,
V-27.
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They claim the defendant discusses only the pricing products that
fit 	within 	ITC’s 	conclusions 	and 	fails 	to 	address 	the 	pricing
products that do not.
This court cannot concur that the defendant goes beyond
clarification 	into 	the 	realm 	of 	new 	rationale, 	and 	plaintiffs’
overall presentation on this point does not demonstrate or persuade
that 	the 	Commission’s 	determination 	is 	either 	unsupported 	by
substantial 	evidence 	or 	not 	in 	accordance 	with 	law. 	It 	did 	not
conclude 	that 	all 	pricing 	products 	with 	the 	highest 	volumes 	of
subject imports had the smallest price declines and vice versa, it
identified three products with the most substantial price declines
and three products in which there had been a significant amount of
competition, with price declines that ITC further found comparable
to the percentage decrease(s) in raw materials costs. 	It therefore
concluded 	there 	was 	a 	lack 	of 	correlation 	among 	all 	such 	data
between price declines and imports.
ITC’s 	conclusion 	is 	not 	unreasonable, 	and 	plaintiffs’
arguments 	on 	this 	issue 	do 	not 	persuade 	that 	the 	Commission 	has
“entirely 	failed 	to 	consider 	an 	important 	aspect 	of 	the 	problem”
within the meaning of Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). 	That is, ITC’s presumptive
interpretation of the record as a whole does not appear inaccurate
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or 	unsupported 	by 	the 	substantial 	evidence 	of 	record 	even 	in 	the
absence of explication on the subject of product 3a in isolation.
Here 	again, 	plaintiffs’ 	argument 	is 	essentially 	for 	the 	court 	to
substitute its judgment for that of the agency on the matter, which
cannot 	occur 	in 	accordance 	with 	the 	standard 	of 	its 	judicial
review. 	See 	Universal 	Camera 	Corp. 	v. 	NLRB, 	340 	U.S. 	474, 	488
(1951) (“as to matters . . . requiring expertise a court may [not]
displace 	the 	[agency]’s 	choice 	between 	two 	fairly 	conflicting
views, 	even 	though 	the 	court 	would 	justifiably 	have 	made 	a
different choice had the matter been before it de novo”).
Because the Commission “‘is presumed to have considered
all 	of 	the 	evidence 	on 	the 	record,’” 	it 	is 	“‘not 	required 	to
explicitly 	address 	every 	piece 	of 	evidence 	presented 	by 	the
parties’” during an investigation. Nucor Corp. v. United States, 28
CIT 188, 234, 318 F.Supp. 2d 1207, 1247 (2004) (quoting USEC Inc.
v. 	United 	States, 	34 	Fed.Appx. 	725, 	730-31 	(Fed.Cir. 	2002)).
Instead, 	it 	need 	only 	address 	the 	“issues 	material 	to 	[its]
determination” 	so 	that 	the 	“path 	of 	the 	agency 	may 	reasonably 	be
discerned.” 	Statement 	of 	Administrative 	Action 	for 	the 	Uruguay
Round Agreements Act, H.R. Rep. No. 103-316, vol. I, at 892 (1994).
On the particular point raised here, the plaintiffs do not persuade
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that 	expanded 	discussion 	addressing 	the 	data 	for 	product 	3a 	is
“material” to ITC’s overall price effects analysis.
(iii)
The 	plaintiffs 	next 	contest 	ITC’s 	position 	on
underselling, namely that it “reasonably found the significance of
[the] 	underselling 	to 	be 	mitigated 	by 	the 	lack 	of 	significant
impact 	on 	the 	domestic 	industry’s 	market 	share, 	as 	the 	domestic
industry lost only [[ ]] percentage points of market share during
the [POI]”. 	Defendant’s Response at 2. 	They argue that nowhere in
its analysis does ITC consider the domestic industry’s statements
concerning 	its 	strategy 	of 	holding 	market 	share 	and 	lowering 	its
prices to meet lower-priced competition from subject imports, and
that what reasoning ITC does offer is circular, essentially writing
the price effects analysis requirement out of the statute:
If Congress had wanted ITC never to reach an affirmative
injury 	determination 	unless 	the 	subject 	imports
demonstrated a significant market share impact, it would
have 	written 	the 	law 	to 	make 	the 	market 	share 	impact 	a
necessary 	prerequisite 	to 	proceed 	to 	a 	price 	effects
analysis. 	The 	statute, 	however, 	is 	not 	written 	in 	this
manner. Rather, the volume and price impact analyses are
equal 	and 	coextensive 	elements 	of 	the 	law, 	and 	require
ITC 	to 	take 	into 	account 	such 	circumstances, 	as
demonstrated 	by 	the 	record, 	where 	domestic 	producers
lowered prices rather than cede market share.
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Plaintiffs’ 	Reply 	at 	12-13 	(emphasis 	in 	original), 	referencing
Sioux 	Honey 	Ass’n 	v. 	Hartford 	Ins. 	Co., 	672 	F.3d 	1041, 	1052
(Fed.Cir. 	2012) 	(‘“[i]t 	is 	a 	long-held 	tenet 	of 	statutory
interpretation that one section of a law should not be interpreted
so 	as 	to 	render 	another 	section 	meaningless’”) 	(quoting 	Princess
Cruises, 	Inc. 	v. 	United 	States, 	201 	F.3d 	1352, 	1362 	(Fed.Cir.
2000)). 	Similarly, 	the 	plaintiffs 	contend 	defendant’s 	assertion
that 	ITC’s 	“analysis 	of 	lost 	sales 	and 	revenues 	responses 	was
likewise reasonable, particularly given that there were no shifts
in 	market 	share”13 	implies 	that 	a 	decline 	in 	domestic 	industry
market 	share 	is 	a 	necessary 	precursor 	to 	any 	assessment 	of 	the
price 	effects 	of 	the 	subject 	imports. 	This 	reasoning, 	the
plaintiffs 	argue, 	once 	again 	effectively 	writes 	out 	the 	price
effect 	section 	of 	the 	statute, 	as 	it 	reflects 	an 	assumption 	that
market 	share 	impact 	is 	a 	threshold 	issue. 	And, 	ironically, 	the
plaintiffs 	further 	point 	out, 	ITC 	did 	find 	the 	volume 	of 	subject
imports “significant in 	absolute terms and relative to consumption
in 	the 	United 	States” 14 , 	but 	found 	that 	the 	lack 	of 	a 	shift 	in
market 	share 	away 	from 	the 	domestic 	industry 	indicated 	that 	no
price 	impact 	was 	evident. 	The 	plaintiffs 	argue 	ITC 	must 	explain
13 	Defendant’s Response at 5.
14 	Id. at 15.
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why a lack of market share shift is evidence of no negative price
effects where domestic producers lowered prices to protect market
share.
From this court’s perspective, the main problem with such
argument is that, notwithstanding the Views’ regard of relatively
stable 	market 	share 	as 	indicating 	“mitigation”, 	the 	Views 	do 	not
unequivocally indicate treatment of market share as a prerequisite
or precursor to determining material injury. 	Market share is, of
course, but one of many factors the Commission evaluates in order
to 	determine 	“impact”, 	19 	U.S.C. 	§1677(7)(C)(iii), 	and 	it 	is, 	of
course, 	also 	further 	directed 	to 	consider 	in 	its 	evaluation 	of
“price” 	whether 	“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”15 , 	but 	finding 	the 	existence 	of 	domestic
industry price reduction(s), in order to maintain market share, is
not, ipso facto, necessarily indicative of material injury “harm”
within 	the 	meaning 	of 	the 	statute, 	as 	there 	may 	be 	“such 	other
economic 	factors 	as 	are 	relevant 	to 	the 	determination 	regarding
whether there is material injury by reason of imports” that bear on
15 	19 U.S.C. §1677(7)(C)(ii)(II).
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the analysis of a given situation. 	19 U.S.C. §1677(7)(B)(ii). 	The
Views’ reference to “mitigation” and a lack of market share shift
must be regarded in the context of the other economic factors ITC
considered 	as 	present 	in 	the 	investigation, 	in 	particular 	the
decreases in capacity utilization from the “systemic” shocks that
both 	plaintiffs 	experienced 	during 	the 	POI, 	and 	not 	solely 	with
regard to subject imports. 	See Views at 37-40.
(iv)
The 	plaintiffs 	devote 	much 	of 	their 	briefs 	arguing
against 	ITC’s 	reasoning 	on 	the 	products’ 	price 	declines. 	See,
e.g., id. at 44 (“[t]he price declines . . . were a result of lower
raw 	materials 	prices, 	unused 	capacity 	and 	intra-industry
competition”). 	The 	phrase 	“intra-industry 	competition” 	is 	found
only once, but, as a matter of the record and ITC’s conclusions, it
dominates the Views.
The plaintiffs advance numerous lines of attack thereon,
none 	of 	which 	prove 	availing. 	They 	acknowledge 	that, 	if
high-permeability 	GOES 	is 	priced 	low 	enough, 	it 	may 	be 	used 	in
place 	of 	conventional 	product 	in 	certain 	applications. 	However,
they 	argue, 	the 	reverse 	is 	not 	true, 	at 	least 	for 	certain
applications 16 , 	and 	given 	that 	demand 	for 	high-permeability 	GOES
16 	See Views at 29 n. l05.
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increased 	significantly 	during 	the 	POI, 	largely 	due 	to 	higher
efficiencies 	mandated 	by 	the 	U.S. 	government 	for 	power
transformers, they contend that “one would [have] expect[ed] to see
prices 	obtained 	by 	the 	sole 	domestic 	producer 	to 	be 	increasing”,
which was not the case.
Considering the record as a whole, ITC concluded why that
was not true. 	See Views at 37 (“[t]he change in these prices was
comparable to the decrease in raw material costs” and “[d]ecreasing
capacity utilization[ ] contributed to the declines in prices for
domestically 	produced 	products”) 	(footnote 	omitted). 	Contesting
that conclusion, the plaintiffs here contend that the Views glide
over 	the 	fact 	that 	only 	AK 	Steel 	produced 	the 	high-permeability
products 	4b 	and 	5b 	and 	that 	intra-industry 	competition 	was
therefore 	not 	a 	factor 	in 	the 	declines 	in 	the 	prices 	for 	those
products 17 , and that pricing information thereon demonstrates that
subject imports had significant price effects.
Critical of defendant’s response, p. 36, that “[r]esting
the pricing analysis on a product manufactured by only half of the
17 	During 	the 	POI, 	Allegheny 	Ludlum 	had 	only 	made
substantial 	investments 	in 	research 	and 	development 	of
high-permeability 	GOES 	but 	not 	in 	commercial-quantity 	production
thereof. 	See 	Transcript 	of 	ITC 	Hearing 	on 	July 	24, 	2014
(hereinafter “Tr.”), PDoc 184, at 28.
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Consol. Court No. 14-00220 	Page 30
domestic industry when the record contains pricing data pertaining
to the industry as a whole would run counter to this mandate”, the
plaintiffs 	argue 	such 	reasoning 	is 	“confounding” 	because 	ITC 	has
never limited its pricing analysis to those products that are made
by 	all 	members 	of 	the 	domestic 	industry, 	and 	it 	is 	those 	exact
products 	(4b 	and 	5b) 	on 	which 	it 	rests 	“so 	much” 	of 	its 	pricing
analysis 	and 	its 	conclusion 	that 	the 	pricing 	products 	with
relatively high import levels showed relatively low price declines.
ITC’s defense (as paraphrased by the plaintiffs) is that,
despite 	increased 	demand 	for 	products 	4b 	and 	5b, 	and 	despite
falling 	prices 	therefor, 	and 	also 	absent 	“intra-industry”
competition 	therefor, 	ITC 	recognized 	that 	prices 	declined 	during
the 	POI 	“for 	all 	domestically 	produced 	pricing 	products”18 	(which
obviously included products 4b and 5b), and that such declines were
due to (1) the domestic industry’s declining exports of GOES; (2)
knowledge by U.S. purchasers of excess U.S. industry capacity; (3)
Allegheny Ludlum’s loss of a contract with a large purchaser; and
(4) decreased raw materials costs. 	See Defendant’s Response at 37,
quoting Views at 35.
18 	Plaintiffs’ Reply at 15, quoting Defendant’s Response at
31 (court’s limitation of quoted passage).
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The 	plaintiffs 	argue 	“each” 19 	of 	the 	above 	explanations
is 	not 	supported 	by 	substantial 	evidence. 	See, 	e.g. 	Plaintiffs’
Memorandum 	of 	Law 	at 	42-49. 	They 	begin 	by 	contending 	ITC
“determined” that competition between Allegheny Ludlum and AK Steel
for the business of Howard Industries “resulted” in the significant
declines in prices at which the domestic industry was able to sell
GOES in the U.S. market during the POI. 	They claim “intra-industry
competition” could not have been the sole or even a primary cause
of U.S. price depression because Allegheny Ludlum did not produce
high-permeability 	GOES 	during 	the 	POI, 	and 	because 	AK 	Steel, 	the
only 	domestic 	producer 	of 	such 	GOES, 	would 	have 	had 	every
motivation 	to 	negotiate 	for 	the 	highest 	price 	possible 	for 	that
product, 	such 	that 	the 	only 	price 	competition 	that 	would 	have
motivated AK Steel to reduce its prices for high-permeability GOES
must 	have 	resulted 	from 	the 	other 	sources 	that 	produced 	these
products, 	namely, 	imports 	of 	high-permeability 	GOES 	from 	Japan,
Korea, and the PRC. 	They charge the Views with glossing over the
information on the record of the prices at which Howard Industries
purchased GOES during the POI as well as the circumstances of the
expiration of its contractual arrangement with Allegheny Ludlum at
19 	Noteworthy 	here 	is 	that 	plaintiffs’ 	briefing does not
address 	the 	domestic 	industry’s 	declining 	exports 	of 	GOES 	during
the POI.
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Consol. Court No. 14-00220 	Page 32
the 	end 	of 	2012, 	which 	involved 	Howard 	Industries 	countering 	a
price offer from AK Steel for purchases in 2013 with lower priced
subject imports, all of which demonstrates that the prices at which
Howard 	Industries 	purchased 	GOES 	was 	not 	and 	could 	not 	have 	been
affected by competition between Allegheny Ludlum and AK Steel.
The plaintiffs also contend defendant’s response raises
a 	number 	of 	points 	that 	are 	incorrect. 	First, 	in 	reply 	to 	its
response 	that 	they 	seem 	to 	“question 	the 	notion 	that 	there 	was
intra-industry competition between the two domestic producers”, the
plaintiffs 	contend 	their 	argument 	is 	not 	that 	there 	was 	no
intra-industry competition in general, but that the facts of record
do 	not 	establish 	that 	there 	was 	any 	significant 	intra-industry
competition 	between 	them 	for 	Howard 	Industries’ 	business. 20 	They
20 	In a footnote, the plaintiffs further complain of ITC’s
response quoting the testimony of an Allegheny Ludlum official for
the proposition that his company and AK Steel “compete vigorously”,
but 	without 	quoting 	testimony 	by 	this 	same 	official 	and 	by 	his
counterpart 	at 	AK 	Steel 	that 	identified 	unfairly 	traded 	subject
imports 	as 	the 	cause 	of 	significant 	price 	declines 	in 	the 	U.S.
market. 	See, 	e.g., 	Tr. 	at 	30, 	PDoc 	184 	(stating 	that 	Allegheny
Ludlum 	was 	“confronted 	with 	very 	low 	priced 	imports 	as 	early 	as
2011, well before our loss of Howard Industries’ business in 2013”
and 	that 	the 	company 	was 	“able 	to 	earn 	a 	reasonable 	return 	. 	. 	.
until 	the 	low-priced 	imports 	entered 	the 	market 	and 	caused
devastating declines in pricing”) (testimony of Mr. Polinski); id.
at 24-25 (“[w]hile our company competes aggressively with Allegheny
Ludlum, our sales staff has been told repeatedly by customers that
we must lower our prices in order to retain their business, or they
(continued...)
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further contend defendant’s response is ironic, given that the only
example 	in 	the 	Views 	of 	intra-industry 	competition 	cited 	is 	over
the Howard Industries account.
Second, the plaintiffs contend that defendant’s response,
as 	with 	ITC 	analysis 	in 	its 	administrative 	proceedings, 	errs 	in
attributing any of the declining prices at which Howard Industries
purchased 	GOES 	to 	competition 	between 	Allegheny 	Ludlum 	and 	AK
Steel. 	See 	Defendant’s 	Response 	at 	39 	(quoting 	Views 	at 	38-39).
See 	also 	Response 	Brief 	of 	intervenor-defendant 	ABB 	Inc. 	(“ABB’s
Response”) 	at 	13; 	JFE/NS&SM 	Opposition 	at 	31-34; 	and 	Response
Memorandum 	of 	intervenor-defendant 	ThyssenKrupp 	Electrical 	Steel
GmbH at 6. Defendant’s response attributes declines in prices paid
by 	Howard 	Industries 	for 	GOES 	purchased 	from 	Allegheny 	Ludlum
between 	2011 	and 	2012 	to 	intra-industry 	competition.21 	The
20 	(...continued)
will 	purchase 	lower-priced 	imported 	GOES 	from 	the 	subject
countries”) (testimony of Mr. Petersen of AK Steel).
21 	The 	plaintiffs 	also 	complain 	of 	ITC’s attribution of
price declines to “widespread knowledge” among U.S. purchasers of
the domestic industry’s excess capacity, which it concluded allowed
the 	purchasers 	to 	negotiate 	lower 	prices. 	See 	Views 	at 	39. 	The
plaintiffs contend the only credible record evidence cited by ITC
in support of “widespread” knowledge is the testimony of a single
industry witness. Thus, they argue that, while ITC also cites the
testimony of a consultant retained by a Japanese producer for ITC’s
investigation, 	his 	testimony 	“makes 	clear” 	it 	is 	based 	on
speculation and not personal knowledge. See Plaintiffs’ Memorandum
of Law at 53-54.
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Consol. Court No. 14-00220 	Page 34
plaintiffs state that Allegheny Ludlum’s pricing during that period
was set by a long-term contract and, thus, Allegheny Ludlum had no
reason 	to 	(and 	did 	not) 	negotiate 	lower 	prices 	with 	Howard
Industries in response to purported competition from AK Steel. 	See
Plaintiffs’ 	Memorandum 	of 	Law 	at 	43-45 	(emphasis 	added).
Accordingly, 	they 	contend 	record 	evidence 	does 	not 	support 	ITC’s
determination 	that 	the 	declines 	in 	prices 	at 	which 	Howard
Industries 	purchased 	GOES 	between 	2011 	and 	2013 	were 	due 	to
competition between Allegheny Ludlum and AK Steel for that account.
Further, 	the 	plaintiffs 	point 	out, 	ITC’s 	Views 	do 	not 	identify 	a
single 	other 	instance 	of 	intra-industry 	competition 	that
purportedly drove down prices in the U.S. market.
Summarizing, 	the 	plaintiffs 	maintain 	that 	while 	Howard
Industries is a significant purchaser of conventional GOES, ITC’s
“failure” to identify “any other evidence in support of the intense
intra-industry 	competition 	that 	purportedly 	drove 	down 	market
prices 	demonstrates 	its 	finding 	is 	not 	supported 	by 	substantial
evidence.” Plaintiffs’ Reply at 18-19 & n. 27.
Third, in regard to defendant’s response that “whether or
not the two companies believed they were competing with one another
for Howard Industries’ business is beside the point,” because ITC
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Consol. Court No. 14-00220 	Page 35
“was 	focused 	on 	what 	transpired 	with 	respect 	to 	prices”, 	the
plaintiffs reply that this statement significantly departs from the
analysis in ITC’s Views, which attributes the declining prices for
GOES 	over 	the 	period 	of 	the 	competition 	between 	the 	two 	domestic
producers. See Views at 39 (attributing the decline in prices that
Howard 	Industries 	paid 	for 	GOES 	over 	the 	POI 	to 	“increased
competition between domestic producers”). 	They argue this amounts
to 	a 	“retreat” 	from 	ITC’s 	findings 	during 	the 	underlying
administrative 	proceedings 	and 	reflects 	the 	lack 	of 	substantial
evidence supporting that finding.
Fourth, 	the 	plaintiffs 	contend 	that, 	in 	seeking 	to
identify 	some 	record 	evidence 	to 	support 	ITC’s 	conclusion 	that
intra-industry competition was the cause of the declining prices at
which 	Howard 	Industries 	purchased 	GOES 	during 	the 	period, 	the
defendant states that the plaintiffs do not contend that AK Steel
had no reason to lower its prices. 	Defendant’s Response at 40. 	To
the contrary, the plaintiffs contend, they explained to ITC that AK
Steel lowered the prices it offered to Howard Industries in 2013 in
response 	to 	lower 	priced 	imports. 	See 	Plaintiffs’ 	Memorandum 	of
Law at 46, discussing the declaration of one [[ 	]] of AK
Steel, who was personally responsible for negotiating the contract
under 	which 	AK 	Steel 	sold 	GOES 	to 	Howard 	Industries 	in 	2013, 	and
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Consol. Court No. 14-00220 	Page 36
citing the petitioners’ July 31, 2014 Post-Hearing Brief, Ex. 7 at
16, CDoc 218, PDoc 200. 	The defendant asserts the information in
that 	declaration 	is 	inconsequential. 	The 	plaintiffs 	disagree,
claiming it is the only information on the record that specifically
addresses why AK Steel lowered the prices at which it sold GOES to
Howard 	Industries 	in 	2013. 	See 	Petitioners’ 	July 	31, 	2014
Post-Hearing Brief, Ex. 7 at ¶6, CDoc 218, PDoc 200. 	As such, they
contend, 	“there 	is 	no 	record 	information 	to 	support 	a 	conclusion
that the decline in prices in 2013 at which AK Steel sold GOES to
Howard Industries was due to anything other than subject imports”,
leaving 	unsupported 	by 	substantial 	evidence 	the 	Commission
majority’s 	conclusion 	that 	the 	decline 	was 	due 	to 	intra-industry
competition.
Fifth, 	the 	plaintiffs 	argue 	that 	the 	explanation 	in
defendant’s 	response 	for 	why 	ITC 	accorded 	little 	weight 	to 	the
[[ 	]] 	declaration 	mischaracterizes 	its 	analysis. 	In
particular, 	defendant’s 	response 	asserts 	that 	it 	“explained 	that
there was contradictory evidence in the record” and that it “found
other 	evidence 	. 	. 	. 	to 	outweigh 	the 	declaration, 	which 	was
reasonable, and is supported by substantial evidence.” 	Defendant’s
Response 	at 	41 	n. 	36. 	The 	plaintiffs 	argue 	these 	statements 	are
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Consol. Court No. 14-00220 	Page 37
inconsistent with the Views. 	In its entirety, the plaintiffs point
out the discussion therein of the [[ 	]] declaration states:
[S]ee also Petitioners’ Posthearing Brief, Exh. 1 at 48
(petitioners claim Howard Industries used its knowledge
of 	low 	import 	pricing 	to 	leverage 	down 	AK 	Steel’s
contractual 	prices). 	This 	claim 	was 	based 	on 	a
confidential declaration. 	As such, it cannot be verified
as 	Commission 	staff 	attempts 	to 	do 	with 	“lost 	revenue”
allegations.
Views 	at 	40 	n. 	148. 	Thus, 	the 	plaintiffs 	argue, 	contrary 	to 	the
representations 	in 	defendant’s 	response, 	the 	Views 	do 	not 	state
that other record evidence outweighs the [[ 	]] declaration,
much less cite to or even reference any such record evidence. They
contend, 	as 	argued 	above, 	that 	ITC 	could 	not 	have 	cited 	any 	such
record 	information 	because 	there 	is 	none 	that 	contradicts 	that
declaration’s explanation of the circumstances that resulted in AK
Steel’s 	decision 	to 	lower 	the 	prices 	at 	which 	it 	sold 	GOES 	to
Howard Industries in 2013.
Sixth, 	the 	plaintiffs 	contend 	that 	the 	defendant 	also
mischaracterizes 	ITC’s 	finding 	regarding 	U.S. 	purchasers
identifying AK Steel and Allegheny Ludlum as “price leaders”. 	They
argue 	that 	ITC 	misinterpreted 	the 	purchasers’ 	responses 	in
concluding that the domestic industry was “responsible” for leading
prices 	down 	for 	GOES 	in 	the 	U.S. 	market. 	See 	Plaintiffs’
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Consol. Court No. 14-00220 	Page 38
Memorandum of Law at 49-52. 	The defendant counters that “ITC did
not 	presume 	that 	prices 	moved 	in 	any 	particular 	direction 	-- 	up,
down, 	or 	remained 	stable 	when 	it 	summarized 	the 	questionnaire
responses 	as 	indicating 	the 	domestic 	producers 	were 	the 	price
leaders”. Defendant’s Response at 43. See also JFE/NS&SM Opposition
at 28-29. The plaintiffs claim that the Commission Views contradict
this 	statement: 	“We 	find 	such 	widespread 	knowledge 	of 	existing
domestic unused capacity enabled purchasers to obtain lower prices.
These observations are consistent with evidence in the record that
the 	domestic 	producers 	are 	the 	price 	leaders 	in 	the 	industry.”
Plaintiffs’ 	Reply 	at 	21, 	quoting 	Views 	at 	39-40 	(plaintiffs’
emphasis). 	Thus, 	they 	claim, 	contrary 	to 	the 	suggestion 	in
defendant’s response, the Views make clear the agency’s conclusion
that 	the 	domestic 	industry 	-- 	as 	purported 	price 	leaders 	-- 	was
responsible 	for 	leading 	prices 	for 	GOES 	in 	the 	U.S. 	market
downward. 	To 	the 	contrary, 	the 	plaintiffs 	continue, 	ITC’s
questionnaire makes clear that a “price leader” is not necessarily
the lower-priced supplier, and other statements made by purchasers
demonstrate that they identified the domestic producers as “price
leaders” 	based 	on 	their 	efforts 	to 	increase 	the 	prices 	at 	which
GOES was sold in the U.S. market.
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Consol. Court No. 14-00220 	Page 39
Seventh, the plaintiffs emphasize that the price declines
on products 4b and 5b during the POI far exceeded the declines in
raw materials costs therefor. 	Indeed, they stress that ITC stated
that 	those 	products 	showed 	“a 	significant 	amount 	of 	competition
between the domestic like product and the subject imports”, Views
at 37, and they object to ITC’s conclusion that the declines in the
pricing products (at least for 2a, 4b, and 5b) were attributable to
declines in raw material prices rather than subject imports. 	See
Plaintiffs’ Memorandum of Law at 36-37.
Here, assuming that delving further into this point might
assist the reader’s understanding, it should be recalled that ITC
observed 	that 	prices 	for 	products 	2a, 	4b, 	and 	5b 	declined, 	while
the cost of raw materials used to produce one ton of GOES decreased
on 	average 	by 	a 	comparable 	percentage. 	See 	Views 	at 	37. 	The
plaintiffs 	argue 	that, 	while 	the 	percentage 	declines 	in 	product
pricing 	may 	have 	been 	similar 	to 	the 	decline 	in 	raw 	materials
costs, 	examination 	of 	the 	record 	shows 	that 	the 	absolute 	price
declines 	far 	exceed 	the 	decline 	in 	raw 	materials 	costs. 	Raw
material 	costs 	declined 	by 	[[ 	]] 	per 	ton 	between 	2011 	and 	2013,
while U.S. prices for the three pricing products fell between [[ ]]
per ton and [[ ]] per ton during the same period, and the average
unit value of U.S. shipments declined by [[ ]] per short ton. See
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Consol. Court No. 14-00220 	Page 40
Plaintiffs’ 	Memorandum 	of 	Law 	at 	37; 	Staff 	Report 	at 	C-4, 	V-15,
V-16, 	and 	V-27. 	The 	plaintiffs 	point 	out 	that 	the 	decline 	in
domestic 	producer 	prices 	for 	products 	4b 	and 	5b 	was 	greater 	than
was justified by the decline in raw materials costs, and they claim
the “causal connection” to subject imports is demonstrated by the
underselling 	data 	itself, 	which 	show 	underselling 	in 	comparisons
for product 4b and for product 5b in the traditional pricing data,
as 	well 	as 	in 	6 	of 	13 	comparisons 	for 	product 	4b 	and 	11 	of 	15
comparisons for product 5b in the direct importer data. 	See Staff
Report, 	V-15, 	V-16, 	and 	Appx. 	D, 	D-13 	and 	D-15. 	And, 	noting
defendant’s 	response 	that 	the 	plaintiffs 	cannot 	“choose” 	which
methodology 	(e.g., 	absolute 	basis) 	ITC 	uses 	in 	its 	analysis 	and
that 	it 	is 	free 	to 	choose 	its 	own 	methodology 	so 	long 	as 	it 	is
reasonable 22 , the plaintiffs counter in their reply that the [[ ]]
decline in raw material costs accounts for just 13 to 17 percent of
the price declines for the products under review.
Eighth, the plaintiffs argue that, although defendant’s
response relies on ABB’s assertions that it “negotiates its sales
with 	U.S. 	producers 	well 	before 	it 	negotiates 	sales 	with 	its
22 	Defendant’s 	Response 	at 	34 	(maintaining 	that 	the
plaintiffs “simply assert that [ITC] should choose calculations for
its 	analysis 	that 	are 	more 	favorable 	to 	the 	outcome 	they 	would
like”).
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foreign 	suppliers” 	in 	support 	of 	ITC’s 	conclusion 	that 	“subject
imports of pricing products 4b and 5b did not lead domestic prices
downward,” it is clear from the record that ABB purchased subject
imports of products 4b and 5b that undersold the prices it paid to
the domestic industry in 16 of 26 comparisons. They contend that,
even 	though 	the 	Japanese 	respondents 	asserted 	that 	their 	heat
proof, 	high-permeability 	products 	4a 	and 	5a 	are 	superior 	to 	the
high-permeability 	products 	offered 	by 	AK 	Steel 	(and 	should 	thus
have 	commanded 	a 	premium), 	the 	prices 	paid 	by 	ABB 	for 	those
products 	were 	less 	than 	the 	prices 	ABB 	paid 	for 	domestic
non-heat-proof GOES products 4b and 5b in every single comparison
during the POI. 	See Staff Report, D-12 to D-15.
Considering the foregoing, it is plain from the Views and
Staff 	Report 	that 	ITC 	found 	various 	factors 	apart 	from 	import
underselling 	that 	were 	behind 	the 	domestic 	industry’s 	product
pricing. 	It fairly recognized that “[p]rices declined during the
[POI] for all domestically produced pricing products”, Views at 35,
and determined that the factors behind the decline(s) were (1) the
large 	decline 	in 	the 	domestic 	industry’s 	exports, 	(2) 	the
widespread 	knowledge 	of 	the 	resulting 	unused 	capacity, 	(3)
Allegheny Ludlum’s loss of a contract with a large purchaser, and
(4) decreased raw material costs, id. at 35-40. 	It also examined
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the 	traditional 	pricing 	data 	to 	observe 	that 	prices 	for 	Japanese
product 	4a 	are 	higher 	than 	domestic 	prices 	for 	product 	4b, 	Staff
Report, 	Table 	V-8; 	it 	observed 	that 	ABB 	negotiates 	its 	purchases
with 	U.S. 	producers 	well 	before 	it 	negotiates 	with 	foreign
suppliers; 	and 	it 	noted 	that 	the 	vast 	majority 	of 	direct 	imports
for 	products 	4b 	and 	5b, 	see 	id., 	Tables 	D-2 	to 	D-7, 	indicated 	to
ITC 	that 	subject 	imports 	of 	those 	products 	did 	not 	lead 	domestic
prices downward. 	ITC pointed to purchaser response to explain its
conclusions 	on 	price 	leadership, 	Views 	at 	40 	n. 	149, 	and 	the
breadth 	of 	knowledge 	it 	imputed 	to 	purchasers 	regarding 	the
domestic industry’s unused capacity, id. at 39 (see also Transcript
of 	ITC 	Preliminary 	Hearing 	on 	Oct. 	25, 	2013, 	PDoc 	67, 	at 	120-21:
“everyone in the industry knows the two reasons why domestic prices
are 	falling” 	et 	cetera), 	and 	ITC 	is, 	as 	it 	states, 	“required 	to
assess the domestic industry as a whole”, Defendant’s Response at
36, referencing Committee for Fair Coke Trade v. United States, 28
CIT 	1140, 	1167 	(2004). 	Plaintiffs’ 	arguments 	raised 	on 	the
apparent issue(s) here do not persuade that ITC has not done so, or
that 	its 	analysis 	thereof 	can 	be 	held 	unreasonable, 	or 	that 	the
record 	does 	not 	substantiate 	its 	four 	conclusions 	above. 	Thus,
notwithstanding 	plaintiffs’ 	attempt 	to 	focus 	“intra-industry
competition” on Howard Industry’s purchases over the POI and/or the
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pricing 	of 	products 	4b 	and 	5b, 	it 	cannot 	be 	concluded 	that 	the
Views’ overall assessment of domestic competition during the POI is
unreasonable or unsupported by substantial evidence on the record.
(v)
Lastly, with respect to their contention that ITC’s price
effects 	analysis 	is 	unsupported 	by 	substantial 	evidence, 	the
plaintiffs 	argue 	that 	the 	record 	does 	not 	support 	its 	findings
regarding lost sales and revenues and that the Commission failed to
address substantial issues they raised.
In 	making 	its 	price 	effects 	finding, 	ITC 	stated 	that,
“[w]hile there are confirmed lost sales and revenues, they are of
minor 	magnitude 	and 	do 	not 	outweigh 	other 	data 	in 	the 	record
showing 	the 	lack 	of 	significant 	price 	effects.” 	Views 	at 	41
(footnote omitted). 	ITC counted as confirmed only those lost sales
and revenues allegations that purchasers explicitly admitted. 	See
Staff Report, Table V-12. 	“The confirmed lost sales do not detract
from 	our 	analysis, 	as 	there 	were 	no 	shifts 	in 	market 	share 	as
discussed 	above.” 	Id. 	at 	41 	n. 	15 	(finding 	two 	confirmed 	lost
sales allegations totaling [[$ 	]] and three 	confirmed
lost revenue allegations totaling [[$ 	]]).
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The plaintiffs argue ITC failed to analyze reasonably the
responses 	to 	the 	domestic 	industry’s 	lost 	sales 	and 	revenue
allegations. Plaintiffs’ Memorandum of Law at 55-67. They contend
it could not simply examine whether responding purchasers “agreed”
or “disagreed” with the allegation, because certain purchasers only
“denied” 	lost 	sales 	and 	lost 	revenue 	allegations 	on 	“technical”
grounds, 	based 	for 	example 	on 	a 	minor 	factual 	dispute, 	but 	the
record 	contains 	numerous 	instances 	of 	purchasers 	otherwise
conceding having purchased a lower-priced imported product or using
a lower price offer for subject imports to force domestic producers
to 	lower 	their 	price 	to 	secure 	a 	sale. 	See 	id. 	at 	56, 	citing
Petitioners’ Pre-Hearing Brief at 39-45, CDoc 203, PDoc 175; Tr. at
47, 	133-34, 	PDoc 	184; 	Petitioners’ 	Post-Hearing 	Brief, 	Ex. 	1 	at
9-14, 44-49, CDoc 218, PDoc 200.
As exemplar, the plaintiffs point to ABB’s response brief
where it “unequivocally denied Plaintiffs’ lost sales allegations.”
ABB’s Response at 9. 	They reply that, although ABB claims to have
“disagreed” with the lost sales allegations, [[
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Consol. Court No. 14-00220 	Page 45
]]. 	See Plaintiffs’ Memorandum of Law at 58-60.
All 	told, 	the 	plaintiffs 	argue 	the 	record 	evidence
demonstrates 	that 	[[ 	]] 	percent 	(by 	value) 	of 	the 	domestic
industry’s lost sales allegations that received a response should
be considered confirmed, and that [[ ]] percent (by value) of its
lost 	revenue 	allegations 	that 	received 	a 	response 	should 	be
considered 	confirmed, 	on 	the 	assumption 	(or 	presumption) 	that 	a
purchaser 	would 	make 	the 	strategic 	decision 	not 	to 	support 	the
domestic industry’s case by confirming such allegations. See id. at
65. 	Based on this analysis, the plaintiffs contend the confirmed
lost 	sales 	allegations 	should 	total 	[[$ 	]] 	and 	the
confirmed lost revenue allegations should total [[$ 	]].
Id. 	They 	add 	that 	these 	figures 	do 	not 	include 	a 	significant
number of allegations where the purchasers did not respond to ITC’s
request 	for 	information, 	which, 	if 	included, 	would 	increase 	the
total 	lost 	sales 	figure 	to 	[[$ 	]] 	and 	the 	total 	lost
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revenues figure to [[$ 	]] - or a total of [[$
]]. 	Id. at 65-66.
The plaintiffs further add that a certain footnote to the
lost sales and revenue summary table in ITC’s Staff Report confirms
an 	administrative 	failure 	to 	meaningfully 	evaluate 	the 	responses
received 	to 	ITC’s 	lost 	sales 	and 	lost 	revenue 	questionnaires
because 	it 	states: 	“[t]his 	column 	is 	not 	a 	staff 	assessment 	of
whether 	the 	purchaser 	comments 	agree 	or 	disagree; 	rather, 	it 	is
only 	reporting 	whether 	the 	purchaser 	wrote 	agree 	or 	disagree 	and
comments on the allegations.” 	Staff Report at V-38.
Defendant’s 	response, 	the 	plaintiffs 	further 	contend,
does not in any manner address the substance of their arguments but
asserts 	they 	are 	merely 	seeking 	to 	have 	the 	court 	“reweigh” 	the
evidence 	on 	lost 	sales 	and 	revenues 23 . 	To 	the 	contrary, 	the
23 	The plaintiffs claim defendant’s response minimizes the
significance of the domestic industry’s lost sales and lost revenue
allegations, 	stating 	that 	even 	if 	all 	of 	the 	allegations 	were
accepted as true, they would amount to just [[ 	]] percent of the
domestic industry’s total shipments of GOES during the period, and
that 	“[t]hese 	totals 	hardly 	outweigh 	the 	other 	evidence 	in 	the
record that ITC considered and explained. Defendant’s Response at
48. 	See 	also 	id. 	at 	49 	(“[t]hus, 	even 	if 	all 	lost 	sales 	and
revenue allegations were confirmed, substantial evidence supports
ITC’s 	findings 	based 	on 	the 	evidence 	to 	which 	ITC 	gave 	the 	most
weight”). 	Here 	again, 	the 	plaintiffs 	charge 	the 	defendant 	with
post 	hoc 	rationalization, 	as 	they 	claim 	the 	Commission 	did 	not
complete such an analysis in the underlying investigation.
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plaintiffs 	claim, 	they 	seek 	the 	court’s 	requiring 	ITC 	“for 	the
first 	time” 	to 	consider 	extensive 	argumentation 	made 	by 	the
domestic industry on three separate occasions in ITC’s final phase
investigation 	but 	that 	remained 	completely 	unaddressed 	in 	its
Views. 	Although the plaintiffs interpret defendant’s response as
“belittl[ing]” 	the 	significance 	of 	the 	domestic 	industry’s
allegations, 	they 	point 	out 	that 	the 	[[$ 	]] 	in 	lost
revenues over the period would have more than offset the operating
loss 	of 	[[$ 	]] 	suffered 	by 	the 	domestic 	industry 	in
2013. 	The plaintiffs insist that the reduced prices that resulted
from those lost sales and revenues forced U.S. producers to accept
even 	lower 	benchmarks 	for 	price 	negotiations 	on 	future 	sales,
resulting 	in 	an 	additional 	negative 	impact 	on 	the 	domestic
industry’s financial condition.
The 	crux 	of 	the 	problem 	with 	regard 	to 	plaintiffs’
arguments, 	however, 	is 	that 	they 	ask 	the 	court 	to 	interfere 	in
ITC’s 	decision 	to 	count 	only 	“confirmed” 	lost 	sales 	and 	revenues
allegations. 	It 	targets 	what 	weight 	the 	agency 	assigns 	to 	the
evidence, a matter within its discretion. 	While it might have been
equally reasonable for ITC to presume the allegations confirmed in
the absence of explicit denial as well, the court cannot conclude
that ITC’s requirement of explicit agreement in order to count an
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allegation “confirmed” was unreasonable in accordance with Consolo,
supra, 	383 	U.S. 	at 	620 	(“two 	inconsistent 	conclusions 	from 	the
evidence does not prevent an administrative agency's finding from
being 	supported 	by 	substantial 	evidence”). 	The 	remainder 	of
plaintiffs’ arguments on this issue, therefore, are unavailing.
B
The 	plaintiffs 	challenge 	ITC’s 	impact 	analysis, 	which
found 	that, 	because 	the 	subject 	imports 	did 	not 	take 	significant
market 	share 	away 	from 	the 	domestic 	industry 	and 	did 	not 	have
significant price effects, the domestic industry was not materially
injured by reason of the subject imports:
The domestic industry’s unfavorable trends in operating
performance were a combination of adverse output-related
effects and adverse revenue effects. These, in turn, were
caused by the loss of export shipments, higher unit costs
resulting 	from 	less 	production, 	and 	reduced 	prices.
However, 	none 	of 	these 	factors 	were 	a 	function 	of 	the
subject imports.
Views at 44.
The plaintiffs contend the Commission majority improperly
applied 	the 	statute’s 	causation 	standard 	in 	not 	finding 	subject
imports 	a 	cause 	of 	material 	injury 24 , 	and 	they 	argue 	it 	erred 	in
24 	They latch onto ITC’s statement that the law requires it
to 	determine 	whether 	subject 	imports 	are 	“the” 	cause 	of 	material
injury to the domestic industry, and they argue the “by reason of”
(continued...)
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attributing 	the 	domestic 	industry’s 	deteriorating 	condition
entirely 	to 	factors 	other 	than 	subject 	imports. 	In 	addition 	to
their arguments over alleged errors in ITC’s price effect analysis,
they 	contend 	it 	improperly 	attributed 	the 	domestic 	industry’s
declining 	performance 	to 	“higher 	unit 	costs 	resulting 	from 	less
production” and not -- at least in part -- to subject imports. See
Plaintiffs’ Memorandum of Law at 70-71, quoting Views at 44.
24 	(...continued)
standard(s) in 19 U.S.C. §§ 1671d(b)(l) and 1673d(b)(l) do(es) not
require 	unfairly 	traded 	imports 	to 	be 	the 	“sole” 	or 	“principal”
cause of injury. 	Plaintiffs’ Reply at 26, referencing Nippon Steel
Co. v. USITC, 345 F.3d 1379, 1381 (Fed.Cir. 2003) (“an affirmative
material-injury 	determination 	under 	the 	statute 	requires 	no 	more
than 	a 	substantial-factor 	showing[; 	t]hat 	is, 	the 	‘dumping’ 	need
not 	be 	the 	sole 	or 	principal 	cause 	of 	injury” 	and 	the 	“by 	reason
of” standard is satisfied so long as subject imports are more than
a minimal or tangential cause of injury; the existence of factors
other 	than 	subject 	imports 	that 	may 	have 	been 	a 	greater 	cause 	of
injury 	does 	not 	prevent 	an 	affirmative 	injury 	determination).
See also Mittal Steel Point Lisas, Ltd. v. United States, 542 F.3d
867, 873 (Fed.Cir. 2008).
This 	court 	does 	not 	regard 	defendant’s 	use 	of 	“the” 	when
describing “cause of material injury” (emphasis in original) in its
response brief as amounting to a misstatement of the law, since the
subheading under which that statement directly appears also states
that subject imports were not “a” cause of material injury. 	In any
event, it is the Views’ statement on the subject that controls, and
therein is specifically stated that “the ‘by reason of’ standard is
satisfied if subject imports are more than a minimal or tangential
cause of injury.” 	Views at 20 n. 71. See also JFE/NS&SM Opposition
at 5-6.
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More precisely, contrary to defendant’s and intervenor-
defendants’ 	arguments 25 , 	the 	plaintiffs 	contend 	that 	“higher 	unit
costs resulting from less production” were not a significant factor
in the domestic industry’s declining financial performance. 	They
argue that, although the domestic industry’s unit costs increased
between 2011 and 2013, the record data show no direct correlation
between 	declining 	production 	and 	increasing 	unit 	costs. 	In
particular, 	the 	plaintiffs 	emphasize 	that, 	while 	domestic
production declined from 2011 to 2012 and from 2012 to 2013, U.S.
producers’ unit costs increased from 2011 to 2012 but declined from
2012 to 2013. See Staff Report, C-4. 	Thus, they argue, the record
does 	not 	support 	ITC’s 	finding 	that 	the 	declines 	in 	the 	domestic
industry’s 	export 	shipments 	and 	domestic 	production 	resulted 	in
significant 	cost 	increases 	that 	caused 	the 	industry’s 	declining
performance.
Judicial 	review 	of 	these 	types 	of 	matters, 	however, 	is
ill-positioned to consider the “significance” of the data to which
the 	plaintiffs 	would 	here 	point; 	all 	that 	may 	be 	reviewed 	is
whether substantial evidence of record supports the determination
25 	See Defendant’s Response at 52-53; JFE/NS&SM Opposition
at 41-42; Opposition of intervenor-defendants Baoshan Iron & Steel
Co., Ltd. and Baosteel America, Inc. at 39.
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reached. 	Nonetheless, 	they 	argue 	it 	is 	significant 	that 	ITC’s
Staff 	Report 	attributes 	the 	domestic 	industry’s 	declining
performance to the reduced prices at which it was able to sell GOES
in 	the 	United 	States. 	In 	particular, 	they 	point 	to 	its 	variance
analysis, 	which 	shows 	that 	of 	the 	[[$]] 	decline 	in 	the 	domestic
industry’s operating income between 2011 and 2013, [[$]] - or [[ ]]
percent 	- 	was 	directly 	attributable 	to 	the 	negative 	effect 	of
decreased prices. Staff Report, VI-13. 	The plaintiffs argue that
because ITC’s Views do not address the variance analysis contained
in the Staff Report26 , defendant’s response now, asserting that the
agency 	“gave 	less 	weight 	to 	the 	variance 	analysis 	than 	to 	the
evidence 	regarding 	the 	decline 	in 	export 	sales 	and 	Allegheny
Ludlum’s loss of the Howard Industries contract”27 , is nothing more
than post hoc rationalization unsupported by the record. 	Equally
unsupported, 	the 	plaintiffs 	continue, 	is 	defendant’s 	assertion,
post 	hoc, 	that 	the 	variance 	analysis 	was 	not 	compelling 28 	because
price 	was 	a 	more 	dominant 	factor 	between 	2012 	to 	2013. 	The
plaintiffs contend that the record shows that price variance had a
greater negative impact on the domestic industry’s operating income
26 	See Views at 33-44.
27 	Defendant’s Response at 53. See also JFE/NS&SM Opposition
at 43-44.
28 	See Defendant’s Response at 52.
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in each year of the POI than either the cost or volume variances.
Cf. Staff Report, VI-13 and VI-14. 	The plaintiffs thus claim that
ITC’s 	failure 	to 	address 	the 	Staff 	Report’s 	variance 	analysis,
which 	establishes 	that 	the 	decline 	in 	pricing 	-- 	not 	increasing
costs -- was the primary reason for the U.S. producers’ financial
deterioration during the POI, represents another instance in which
the 	Commission 	failed 	to 	address 	record 	information 	that 	is
contrary to its findings and that requires a remand to the agency
for further deliberation.
This 	court 	cannot 	concur 	with 	such 	reasoning. 	ITC
acknowledged 	the 	price 	declines, 	and 	it 	found 	that 	the 	reasons
therefor 	were 	a 	result 	of 	lower 	raw 	materials 	costs, 	unused
capacity, and intra-industry competition. 	Regardless of why it did
not rely on the variance analysis in its Views, the use or non-use
was 	matter 	within 	its 	discretion. 	See 	AWP 	Industries 	v. 	United
States, 	35 	CIT 	___, 	___, 	783 	F.Supp.2d 	1266, 	1280 	n. 	35 	(2011)
(“[v]ariance analysis is a tool that the Commission may use during
an investigation”) (emphasis added); Altx, Inc. v. United States,
26 CIT 1425, 1433 (2002) (ITC need not rely on theoretical model if
“less helpful” than other data in the record), aff’d, 370 F.3d 1108
(Fed.Cir. 2004). 	And plaintiffs’ arguments do not persuade that,
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or 	explain 	why, 	reliance 	upon 	the 	variance 	analysis 	would 	have
altered ITC’s Views on the price declines in any event.
III
In 	conclusion, 	and 	in 	view 	of 	the 	foregoing, 	the 	court
can 	only 	observe 	that 	there 	is 	no 	bright 	line 	between 	fair 	and
unfair competition -- each situation must be, and necessarily is,
evaluated 	on 	its 	own 	merits, 	ad 	hoc. 29 	Here, 	the 	standard 	of
judicial 	review 	precludes 	de 	novo 	review. 	And 	the 	plaintiffs 	do
not persuade that ITC’s Views are either unsupported by substantial
evidence on the record or not in accordance with law. 	Accordingly,
their 	motion 	for 	judgment 	on 	that 	record 	must 	be 	denied, 	with
judgment entered dismissing their complaint.
So ordered.
Decided: 	New York, New York
November 23, 2016
/s/ Thomas J. Aquilino, Jr.
Senior Judge
29 	See, e.g., Fed. Trade Comm'n, Antidumping Legislation and
Other 	Import 	Regulations 	in 	the 	United 	States 	and 	Foreign
Countries, 	S. 	Doc. 	No. 	73-112 	(1934) 	(“[d]umping 	has 	been
repeatedly recognized as unfair competition in national legislation
and 	in 	international 	conferences 	and 	agreements, 	although 	it 	is
sometimes very difficult to draw the line between what is fair and
what is unfair in foreign-trade development”); Susan Bierman, Fair
and Unfair Trade in an Interventionist Era, 77 Am. Soc'y Int'l L.
Proc. 	114, 	114-15 	(1983) 	(Remarks 	of 	Seymour 	J. 	Rubin, 	Chairman)
(“[i]t may well be that the realities of relief against injury from
foreign competition blur the often indistinct line between fair and
unfair trade”).
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