DAK Americas LLC et al v. United States

Slip Op 21-52
UNITED STATES COURT OF INTERNATIONAL TRADE
DAK AMERICAS LLC, INDORAMA
VENTURES USA, INC., and NAN YA
PLASTICS CORPORATION, AMERICA,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
NOVATEX LIMITED, G-PAC
CORPORATION, NIAGARA BOTTLING,
LLC, and iRESIN, LLC,
Defendant-Intervenors.
Before: Gary S. Katzmann, Judge
Court No. 18-00238
PUBLIC VERSION
OPINION
[The court sustains the International Trade Commission’s Remand Views.]
Dated: May 3, 2021
Paul C. Rosenthal, Kathleen W. Cannon, and Brooke M. Ringel, Kelly Drye & Warren, LLP, of
Washington, DC, for plaintiffs.
Brian R. Allen, Attorney-Advisor, Office of the General Counsel, U.S. International Trade
Commission, of Washington, DC, for defendant. With him on the brief were Dominic L. Bianchi,
General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.
Brenda A. Jacobs, Jacobs Global Trade & Compliance LLC, of McLean, VA, for defendant-
intervenors, Novatex Limited and G-PAC Corporation. 	With her on the joint brief was Neil R.
Ellis, Law Offices of Neill Ellis PLLC, of Washington, DC.
John M. Peterson, Neville Peterson LLP, of New York, NY, argued for defendant-intervenor,
Niagara Bottling, LLC. With him on the brief were Richard F. O’Neill and Patrick B. Klein.
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Susan G. Esserman, Joel D. Kaufman, Luke M. Tillman, and Judy (Zhu) Wang, Steptoe & Johnson
LLP, of Washington, DC, for defendant-intervenor, iResin, LLC.
Katzmann, Judge: In its prior opinion in this case, the court, noting the Aristotelian maxim
that “like cases should be treated alike,” observed that consistency is a core value of administrative
law. DAK Americas LLC v. United States, 44 CIT __, __, 456 F. Supp. 3d 1340, 1346 (2020)
(“DAK Americas I”) (citations omitted). 	“[T]hough past agency decision-making may not be
precedential in the same way as case law through stare decisis, it remains of great importance.”
Id. at 1355 (footnote omitted). The court’s concern that “reasoned decision-making come to bear”
on agency determinations impels that the agency explain its departure from prior determinations,
insofar as there has been such a departure. Id. at 1356.
The court now returns to the material injury investigation by the International Trade
Commission (“Commission”) on the effects of imports of PET resin -- a polyester polymer (i.e.
plastic) material used to make many common products, including bottles -- on the U.S. domestic
industry. Before the court is the Commission’s Remand Views, Views of the Commission, Sept.
23, 2020, ECF No. 117 (“Remand Views”), which the court ordered in DAK Americas I, so that
the Commission could further explain certain aspects of its negative injury determination in
accordance with the court’s instructions. On remand, the Commission again determined that the
U.S. PET resin industry is not injured or threatened with material injury by PET resin imports sold
at less than fair value. Remand Views at 1. Plaintiffs DAK Americas LLC (“DAK”), Indorama
Ventures USA, Inc. (“Indorama”), and Nan Ya Plastics Corporation (“Nan Ya”) (collectively,
“Plaintiffs”) again challenge the Commission’s decision. 	Pls.’ Cmts. on the Int’l Trade
Commission’s First Remand Determination, Oct. 23, 2020, ECF No. 121 (“Pls.’ Br.”). Defendant
the 	United 	States 	(“Government”) 	and 	Defendant-Intervenors 	Novatex 	Limited, 	G-Pac
Corporation, iResin, LLC, and Niagara Bottling, LLC (collectively, “Defendant-Intervenors”)
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request that the court affirm the Commission’s Remand Views. Def. United States’ Resp. to Pls.’
Cmts. on Remand, Nov. 23, 2020, ECF No. 130 (“Def.’s Br.”); Corr. Version of Reply of Def.-
Inters., Novatex Ltd. and G-Pac Corp., to Pls.’ Cmts. on the Remand Determinations of the U.S.
Int’l Trade Commission, Nov. 24, 2020, ECF No. 133 (“Novatex’s Br.”); Rebuttal Cmts. of Def.-
Inter., Niagara Bottling, LLC, Nov. 23, 2020, ECF No. 132 (“Niagara’s Br.”); Reply Br. of Def.-
Inter. iResin in Resp. to Pls.’ Cmts. on the Remand Determination of the Int’l Trade Commission,
Nov. 24, 2020, ECF No. 135 (“iResin’s Br.”). The court affirms.
BACKGROUND
The court set out the relevant legal and factual background of the proceedings in further
detail in its previous opinion, DAK Americas I, 456 F. Supp. 3d at 1347–52. Information relevant
to the instant opinion is set forth below.
Plaintiffs, U.S. producers of PET resin, filed antidumping petitions with the Commission
after subject imports surged following the 2015 imposition of remedial duties on PET resin imports
from Canada, China, India, and Oman. See Petition for the Imposition of Antidumping Duties:
Imports of Certain Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of
Korea, Pakistan, and Taiwan, Sept. 26, 2017, P.R. 1. 	The Commission defined the period of
investigation (“POI”) as the first quarter of 2015 through the first quarter of 2018. See Confidential
Views of the Commission in Polyethylene Terephthalate Resin from Brazil, Indonesia, Korea,
Pakistan, and Taiwan: Investigation. Nos. 731-TA-1387–91 (Final) at 4, USITC Pub. 4835 (Nov.
2018), P.R. 209, C.R. 342 (“Original Views”). 	The Commission found that the U.S. PET resin
market was price-sensitive and characterized by product fungibility, that the subject imports’
market share gains came at the same time as the domestic industry lost market share, and that the
domestic industry suffered a decline in financial condition during the POI. Id. at 29–30, 45–46.
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The Commission nevertheless concluded: (1) the underselling that occurred was not significant,
based upon both indirect pricing reports that showed overselling was more prevalent and
purchasers’ reports that showed supply shortages as the cause of domestic market share losses;
and (2) the subject imports did not have a significant adverse impact on the domestic industry. Id.
at 50–55.
Plaintiffs challenged that determination before the court. See Compl., Dec. 26, 2018, ECF
No. 9. Plaintiffs moved for judgment on agency record, arguing that: (1) the Commission failed
to explain why the underselling on the record was not significant in light of prior Commission and
court decisions finding mixed underselling significant; (2) the Commission’s determination that
subject imports predominantly oversold domestic product was not supported by substantial
evidence because the Commission excluded several points of conflicting evidence; (3) the
Commission’s finding that domestic supply constraints explain the subject import surge is not
supported by substantial evidence because the record indicates supply constraints solely
manifested 	from 	October 	2016 	onwards; 	and 	(4) 	the 	aforementioned 	errors 	make 	the
Commission’s ultimate no adverse impact determination unsupported by substantial evidence.
DAK Americas I, 456 F. Supp. 3d at 1353. The court granted Plaintiffs’ motion and remanded the
Commission’s determination for further explanation and a decision based on substantial evidence.
Id.
On remand, the three Commissioners who participated in the original determination and
two Commissioners who were not on the Commission at the time of the original determinations
re-examined the case and unanimously came to the same conclusions as in the Original Views.
Remand Views at 3 n.7. The Commission provided further explanation and analysis of the record
evidence underlying its determination but did not change its ultimate conclusions that there was
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no significant underselling and no adverse impact on the domestic industry. See Remand Views
at 1. The Commission filed its Remand Views with the court on September 23, 2020. See Remand
Views. 1 Plaintiffs filed their comments on the Remand Views on October 23, 2020. Pls.’ Br. The
Government and Defendant-Intervenors filed replies to these comments on November 23, 2020.
Def.’s Br.; Novatex’s Br.; Niagara’s Br.; iResin’s Br.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction to review negative material injury determinations by the
Commission under 19 U.S.C. § 1561a(a)(1)(C). 	The court will hold unlawful those agency
determinations which are unsupported by substantial evidence on the record or otherwise not in
accordance with law under 19 U.S.C. § 1516a(b)(1)(B)(i). 	A decision based on substantial
evidence and in accordance with law includes an examination of the record and an adequate
explanation for an agency’s findings such that the record demonstrates a rational connection
between the facts accepted and the determination made. Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Substantial evidence includes “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Nippon Steel Corp. v.
United States, 458 F.3d 1345, 1358 (Fed. Cir. 2006) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 477–78 (1951)). The court must defer to the Commission’s role as trier of fact and
not disturb its “considerable discretion in evaluating information obtained from questionnaires.”
Int’l Indus. v. United States, 42 CIT __, __, 311 F. Supp. 3d 1325, 1333 (2018) (quoting NSK
Corp. v. United States, 32 CIT 966, 978, 577 F. Supp. 2d 1322, 1336–37 (2008)); see also Coal.
of Gulf Shrimp Indus. v. United States, 39 CIT __, __, 71 F. Supp. 3d 1356, 1365 (2015) (stating
1 Many citations are to confidential filings for clarity in explaining the timeline of events. Public
versions, often filed at later dates, are available on the public docket with corresponding
pagination.
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that as part of its selection of methodology, the Commission “has discretion to select a data set that
it will use in its investigation”); Goss Graphics Sys. v. United States, 22 CIT 983, 1004, 33 F.
Supp. 2d 1082, 1100 (1998), aff’d, 216 F.3d 1357 (Fed. Cir. 2000). “[W]hen the totality of the
evidence does not illuminate a black-and-white answer to a dispute[],” the court defers to the
Commission as “the expert factfinder . . . to decide which side’s evidence to believe.” 	Nippon
Steel Corp., 458 F.3d at 1359. 	The court also reviews remand results for compliance with its
remand order. See Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F.
Supp. 2d 1255, 1259 (2014).
DISCUSSION
On remand, the court ordered the Commission to provide further explanation of its
conclusions regarding the following issues: “(1) the Commission’s determination that overselling
predominated and underselling was not significant in light of aspects of the record showing
underselling and to address prior determinations that even underselling that occurred in less than
50 percent of price comparisons could be significant; (2) the Commission’s finding that supply
constraints were the cause of market share shifts rather than underselling in light of conflicting
evidence that supply constraints solely occurred from October 2016 onwards; and (3) the
Commission’s no adverse impact determination in light of the insufficiencies in its overselling and
supply constraint findings.” DAK Americas I, 456 F. Supp. 3d at 1367–68.
Plaintiffs now challenge the Commission’s remand determination, arguing that it “fail[ed]
to comply with the [remand] instructions,” and “repeated its original findings and rationale, which
were rejected by this [c]ourt.” 	Pls.’ Br. at 2–3. 	The Government states that “[b]ecause the
Commission’s remand determinations are supported by substantial evidence and otherwise entirely
in accordance with law, and fully respond to the [c]ourt’s remand instructions, we respectfully ask
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this [c]ourt to affirm.” Def.’s Br. at 1. 2 Further, the Government responds to Plaintiffs by stating
that “the [c]ourt did not instruct the Commission to reverse its findings and reach an affirmative
determination on remand,” and “[n]owhere do the [c]ourt’s instructions direct the Commission to
discard 	its 	previous 	analyses 	and 	findings, 	nor 	do 	they suggest 	that 	the 	Commission’s
determinations could not be supported by any evidence in the record.” Def.’s Br. at 2–3.
Upon 	review 	of 	its 	Remand 	Views, 	the 	court 	now 	sustains 	the 	Commission’s
determination. 	After previously pointing to the Commission’s failure to explain and address
certain 	evidence, 	counter-arguments, 	and 	past 	decisions 	that 	separately 	and 	collectively
undermined 	its 	conclusions, 	the 	court 	now 	determines 	that 	with 	further 	explanation 	the
Commission’s conclusions are support by substantial evidence and in accordance with law. Many
of Plaintiffs’ remaining issues with the Commission’s conclusions stem from their own view of
the record rather than a failure by the Commission to comply with the court’s remand instructions.
Where reasonable minds may disagree, the court defers to the agency and does not disturb the
agency’s evaluation of the weight of evidence where its decision is adequately explained. 	See
Nippon Steel Corp., 458 F.3d at 1359.
I. 	The Court Sustains the Commission’s No Significant Underselling Conclusion.
The Commission’s Original Views concluded that there was no significant underselling of
imports compared to the U.S. domestic price for PET resin despite the presence of an import surge
during the POI, the price sensitivity of the PET resin market, and the fungibility or substitutability
of subject goods. 	Original Views at 29–30, 45–46, 50–55. 	In making this determination, the
Commission examined questionnaire responses from interested parties, quarterly pricing data from
2 By and large, Defendant-Intervenors’ positions are consistent with the Government’s. 	See
Novatex’s Br.; Niagara’s Br.; iResin’s Br. 	Therefore, the court discusses the Government’s
position as representative of arguments in support of the Commission’s Remand Views.
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U.S. importers for commercial transactions (“quarterly pricing data”), data on direct imports for
internal consumption for production of downstream products or for direct retail sale to end
consumers (“direct imports”), and hearing testimony. See id. at 33–34, 50 n.191, 51–52; see also
Remand Views at 30 n.121. The court identified three issues that undermined this conclusion: (1)
apparent inconsistencies with the Commission’s general conclusions that the U.S. PET resin
market was characterized by price sensitivity and product fungibility and the significance of
underselling compared to its prior determinations containing the same general conclusions about
price and fungibility, DAK Americas I, 456 F. Supp. 3d at 1356–57; (2) unaccounted for
differences in the selection of quarterly price data and unexplained contradictory evidence related
to this data, id. at 1357–58; and (3) unexplained or unaccounted for evidence that pointed to the
importance of price on the shift in market share away from domestic producers, id. at 1361–62.
On remand, the Commission provided additional analysis and explanation of the U.S. PET
resin market that shaped the Commission’s views as to each of the three issues identified by the
court. See Remand Views at 10–12. The Commission continued to conclude that there was no
significant underselling by imports in the U.S. PET resin market. Id. at 16. However, based on
the same price data, the Commission explained that other factors, including availability and
quality, impacted the PET resin market in addition to price sensitivity and substitutability. Id. at
11 (“[O]nly one factor was rated very important by all 25 respondents: availability”). Thus, the
commission concluded that “price by itself would in many instances not be determinative in
purchasing decisions.” Id. at 27–28; see also id. at 12 (“Price was the fourth-ranked purchasing
factor.”). 	Further, despite increased imports during the POI, the Commission again identified
“overselling of the domestic product” because “th[e] imports predominantly sold at higher prices
than the domestic product -- indicating that factors other than price were influencing purchasing
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decisions.” 	Id. at 28. 	The Commission explained that “[c]onsistent with [its] well-established
practice, [it] focused [its] underselling analysis on a comparison of the number of instances of
underselling to the number of instances of overselling as reflected in the quarterly price
comparison data.” 	Id. at 28. 	Accordingly, the Commission concluded that, by volume, the
quarterly price data showed predominant overselling (69 percent of sales by volume). Id. at 29. 3
Because the Commission provided further explanation on the points identified by Plaintiffs and
highlighted by the court that seemed to undermine its conclusion that there was no significant
underselling by imports in the domestic PET resin market, the court affirms the Commission’s no
significant underselling conclusion. 4
A. 	Inconsistencies with the Commission’s Past Decisions
In its prior opinion, the court instructed the Commission to “address why the underselling
that it found was not significant,” “where the Commission made the same two determinations (i.e.
3 While there was some underselling in each year of the POI, only in 2015 did the underselling
predominate, constituting 58 percent of sales by volume. Remand Views at 29. Because the last
two years of the POI were predominated by overselling (64 percent and 85 percent in 2016 and
2017, respectively), the Commission concluded that the “quarterly sales price data reflect
predominant overselling of the domestic product by subject imports” and the “data weigh heavily
against a finding of significant underselling of the domestic product by subject imports.” Id. at 29.
4 Plaintiffs contest the Commission’s re-examination of the market characteristics on remand, and
allege that “[t]he Commission does not . . . point to evidence that the quality of subject imports or
availability issues (other than its continued, faulty reliance on domestic supply constraints) drove
subject import sales instead of pricing in a market where, the Commission acknowledges, price is
a very important factor.” 	Pls.’ Br. at 26. 	The court is not persuaded by this argument. 	It was
appropriate that the Commission review and further explain its market assessment on remand given
the court’s instruction for the Commission to further explain its “findings of a general nature.”
DAK Americas I, 456 F. Supp. 3d at 1353. The Commission supported this further analysis of the
market with ample evidence and adequate explanation. See Remand Views at 10–12 (analyzing
record evidence of market conditions other than price that affected the U.S. PET resin market); see
also id. at 32 nn.130–31 (citing Original Views at V-11–V-14 Tables V-3–V-6; id. at V-31 Table
V-12). The court defers to the Commission’s expert analysis of market conditions during the POI.
See Nippon Steel Corp., 458 F.3d at 1359.
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price-sensitivity and substitutability)” in other results in which the Commission concluded the
opposite. DAK Americas I, 456 F. Supp. 3d at 1357 (citations omitted); id. (“[T]he court orders
the Commission in considering its underselling finding on remand to reasonably distinguish its
conclusions from findings of a general nature in prior determinations in the event of any conflict.”).
In addition to the added analysis of the U.S. PET resin market discussed above, the
Commission noted that its “findings in these investigations are not that there was ‘mixed’
underselling,” but rather, “that the data in these investigations evidenced predominant overselling
by the subject imports.” Remand Views at 38. 5 This was because “[t]his is not a case where the
number of instances of underselling and overselling are close or ‘mixed,’ but rather one in which
instances of overselling far prevail.” 	Id. at 38. 	The Commission went on to distinguish its
conclusion from that in eight other investigations in which there was a high degree of
substitutability, price was an important consideration, and there was some degree of underselling
identified. See id. at 39–46 (Certain Hot-Rolled Steel Flat Products from Australia, Brazil, Japan,
Korea, the Netherlands, Turkey, and the United Kingdom, Inv. Nos. 701-TA-545–47, 731-TA-
5 Plaintiffs challenge the Commission’s price analysis by alleging that the Commission should
have examined underselling by considering both quarterly price data and direct imports in toto.
Pls.’ Br. at 16. 	The Commission explained that direct imports “cannot be combined with[]
[quarterly pricing data] as the latter reflect actual sales into the U.S. market and the former reflect
U.S. importers’ purchase costs[, which] do not capture other costs beyond the landed duty-paid
value that U.S. importers may incur as a result of importing the product, such as logistical or supply
chain costs and warehousing and inventory carrying costs.” Remand Views at 15 (citing Blank
Importer Questionnaire at Q. II-4). The Commission also explained that it considered the direct
import data in its underselling analysis, but ultimately concluded that the quarterly price data was
“paramount and the most probative price information.” 	Id. at 16. 	As the Government notes,
“Plaintiffs cite no prior Commission determinations in which the Commission has combined these
two data sets because the Commission has never done so.” 	Def.’s Br. at 20 n.18. 	The court
therefore concludes that the Commission adequately considered direct import data and explained
its use and consideration of that data in reaching its no significant underselling conclusion. 	Its
decision not to numerically combine the two data sets was also explained and the court is
unpersuaded by Plaintiffs’ challenge to this methodology.
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1291–97 (Final) USITC Pub. 4638 (Sept. 2016) (“Certain Hot-Rolled Steel Flat Products”);
Certain Corrosion-Resistant Steel Products from China, India, Italy, Korea, and Taiwan, Inv. Nos.
701-TA-534–37, 	731-TA1274–78 	(Final), 	USITC 	Pub. 	4620 	(July 	2016) 	(“Certain 	CRS
Products”); Cold-Rolled Steel Flat Products from China and Japan, Inv. Nos. 701-TA-541, 731-
TA-1284, 1286 (Final), USITC Pub. 4619 (July 2016) (“Cold-Rolled Steel Flat Products”); Certain
Steel Nails from China, Inv. No. 731-TA-1114 (Final), USITC Pub. 4022 (July 2008) (“Certain
Steel Nails”); DRAMs and DRAM Modules from Korea, Inv. No. 701-TA-431 (Final), USITC
Pub. 3616 (Aug. 2003) (“DRAMS from Korea”); Certain Stainless Steel Plate from Belgium,
Canada, Italy, Korea, South Africa, and Taiwan, Inv. Nos. 701-TA-376, 377, 379, 731-TA-788–
93 (Final), USITC Pub. 3188 (May 1999) (“Certain Stainless Steel Plate”); Cold-Rolled Carbon
Steel Plates and Sheets from Argentina, Inv. No. 731-TA-175 (Final), USITC Pub. 1637 (Jan.
1985) (“Cold-Rolled Carbon Steel Plates”); Certain Carbon Steel Products from Spain, Inv. Nos.
701-TA-155, 157–60, 162 (Final), USITC Pub. 1331 (Dec. 1982) (“Certain Carbon Steel
Products”)). 	The Commission distinguished the percentages of underselling and overselling by
volume, see id. at 39–45 (discussing all determinations), the timing of overselling compared to the
market share of imports, see id. at 39, 40, 41 (discussing Certain Hot-Rolled Steel Flat Products,
Certain CRS Products, and Cold-Rolled Steel Flat Products), and the differences in purchaser
responses as to the primary reason for purchasing imports rather than domestic product, see id. at
39–42, 44–45 (discussing all determinations except DRAMS from Korea). Some determinations
were distinguished on other bases, such as the type or availability of data analyzed. See Remand
Views at 43–45 (discussing DRAMS from Korea, Certain Stainless Steel Plate, Cold-Rolled
Carbon Steel Plates, and Certain Carbon Steel Products).
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Plaintiffs again challenge the Commission’s Remand Views as inconsistent with those past
determinations by alleging that “[t]he Commission changed nothing in its pricing analysis in
response to these broad findings of error.” 	Pls.’ Br. at 16. 	Plaintiffs argue that “[h]ad the
Commission also considered” underselling by direct imports, “it would have further reported that
there was underselling in [[ 	]] percent of quarterly direct price comparisons and [[ 	]] percent
of direct import pricing comparisons on a volume basis.” Id. at 27. Based on this alleged error,
Plaintiffs argue that “the Commission provided a simplistic comparison of the underselling
percentage here, based on the unrevised, indirect quarterly price comparisons, to the underselling
percentages found in other cases.” Id. Plaintiffs also contend that the Commission should have
considered “the record as a whole on the low import prices” and the “specifics of the PET resin
market [and] U.S. producers[’] attempt[] to combat unfair import competition” compared to each
prior determination. Id. at 28–29.
The Government responds that “the Commission found that ‘the unique facts, and the
analysis and conclusions drawn from them’ were not applicable to the present investigations and
determinations.” Def.’s Br. at 22 (citing Altx, Inc. v. United States, 25 CIT 1100, 1109, 167 F.
Supp. 2d 1353, 1365 (2001)). 	Similarly, the Government explains that the Commission “cited
various factors examined in the other cases that distinguished the other cases from the facts of the
instant investigations, such as the timing of importation and the importance of price in purchasing
decisions.” Id. 6 Further, the Government notes that “[d]iscussion of these various factors by the
6 	For 	similar 	reasons, 	iResin 	contends 	that 	the Remand 	Views 	are 	consistent 	with 	the
Commission’s two previous determinations regarding PET resin, Polyethylene Terephthalate
(PET) Resin from India, Indonesia, and Thailand, Inv. Nos. 701-TA-439 and 731-TA-1077, 1078
and 1080 (Final) USITC Pub. No. 3769 (May 2005) and Polyethylene Terephthalate (PET) Resin
from Canada, China, India, and Oman, Inv. Nos. 701-TA-531-532 and 731-TA-1270–73 (Final),
USITC Pub. No. 4604 (April 2016). iResin’s Br. at 4–5.
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Commission, as well as several other sections of the Commission’s Remand Views, contradicts
Plaintiffs’ argument that the Commission ‘ignores all of the other record evidence.’” 	Id. at 22
n.20.
The court concludes that the Commission’s further explanation of the U.S. PET resin
market on remand and discussion of relevant factors from the other cases complies with this aspect
of the remand instructions. 	Thus, the Commission’s explanation that the prior determinations
materially differed on the basis of volume, timing of imports, and the importance of price to the
markets adequately explains why its conclusions of a general nature regarding the market
conditions for U.S. PET resin were distinct from market conditions for products subject to past
investigations. 	The court affirms this aspect of the Commission’s Remand Views because the
Commission complied with the court’s instruction for the Commission to explain “whether: (1)
good reasons prompt that departure; or (2) the prior determinations are inapposite such that it is
not in fact a departure at all.” DAK Americas I, 456 F. Supp. 3d at 1356 (citing Atchison, Topeka
& Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); British Steel PLC v. United
States, 127 F.3d 1471, 1475 (Fed. Cir. 1997); Chisholm v. Def. Logistics Agency, 656 F.2d 42, 47
(3d Cir. 1981)); see also id. at 1354–56 (discussing Cleo Inc. v. United States, 501 F.3d 1291,
1298–99 (Fed. Cir. 2007); Usinor v. United States, 26 CIT 767, 792, 24 ITRD 1711 (2002)).
B. 	Quarterly Pricing Data
In its original opinion, the court concluded that certain inconsistencies undermined the
Commission’s selection of quarterly pricing data, related to both data that was included and
excluded in the data set. Specifically, the court identified three issues within the Commission’s
selected quarterly pricing data: (1) the exclusion of [[ 	]] data and the inclusion of [[
]] data; (2) the exclusion of [[ 	]] data; and (3) the inclusion
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of [[ 	]] data. 	Id. at 1357–61. 	In response to the court’s remand instructions, the
Commission addressed each set of indirect pricing data identified by the court as not adequately
explained or not supported by substantial evidence, reached the same conclusions, and relied on
the same set of data for the remand decision.
1. 	Exclusion of [[ 	]] Data and Inclusion of [[
]] Data
First, the court remanded the Commission’s decision to exclude [[ 	]] data
given similar inconsistencies in the included data of [[ 	]] for further explanation
and a decision based on substantial evidence. Id. at 1358–59. Relatedly, the court instructed the
Commission to address the weight of this conflicting evidence in the context of its conclusion that
there was no significant underselling. Id. at 1362. On remand, the Commission again decided to
exclude the data of [[ 	]]. Remand Views at 23. The Commission explained that certain
discrepancies and inconsistencies in the [[ 	]] data made it improper for the
Commission’s consideration. Id. at 25. Specifically, [[
]] and reported differing data on [[
]]. Id. at 24–25. Further, as to the court’s conclusion that this
data constituted evidence that undermined the Commission’s underselling conclusion despite it
not being included in its data set, the Commission explained that the values of [[ 	]]
reported volumes did not provide a comparison with the prices for domestic products so that it not
carry as much weight in its ultimate decision. Id. at 26. Finally, the Commission explained that
there was a “meaningful difference” between the data submitted by [[ 	]] and [[
]] because [[ 	]] provided “specific and usable price data” with only
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one identified discrepancy. 	Id. at 27. 	Unlike [[ 	]], [[ 	]] fully
addressed the Commission’s concerns regarding the discrepancy identified. Id.
Plaintiffs contend that this decision “does not comply with the court’s instruction” because
the Commission relied upon the same rationale -- “[[
]]” -- and does not “take into account in any way this [[
]].” Pls.’ Br. at 24. Plaintiffs argue that “[a] claimed
inability to determine the pricing category of these imports is without merit, given that there was
[[ 	]].”
Id. at 24 n.20. 	Finally, Plaintiffs state that the Commission’s decision to continue to include [[
]] data “reflects a selective approach to excluding certain data wholesale while
including other questionable data.” Id. at 24. The Government responds that the “Commission
provided a fulsome and detailed explanation of its decision not to consider the data pertaining to
price provided by [[ 	]] in its underselling analysis.” Def.’s Br. at 8. “The Commission
explained the ‘meaningful difference’ it found in the data submitted” and “reasonably included [[
]] data.” Id. at 9–10. Finally, the Government argued that “[[ 	]]
data pertaining to price is not appropriately considered as price data or purchase cost data for
imports for internal consumption or retail sale.” Id. at 18 n.16 (citing Remand Views at 23–26).
The court concludes that the Commission complied with its remand instructions to
adequately explain its decision to exclude this data and this data’s impact on its underselling
analysis. 	The court agrees with the Government that, contrary to Plaintiffs’ contention, “the
Commission did not completely disregard [[ 	]] questionnaire data, as it again relied
on the aggregated import volumes and values data that included [[ 	]] data.” Id. at 7
(citing Original Views at IV-4 n.5 Table IV-1). The Commission’s reasons for excluding this data
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from the quarterly pricing data reflect a reasoned analysis of its decision to exclude this data, rather
than Plaintiff’s alleged “selective approach.” Coal. of Gulf Shrimp Indus., 71 F. Supp. 3d at 1365
(“[The Commission] has discretion to select a data set that it will use in its investigation . . . ”).
2. 	Exclusion of the Pricing Data of Importer [[ 	]]
Second, the court found that the Commission’s “failure to address, in any way, . . . the
exclusion of data from a significant importer[, [[ 	]], 	was] insufficient to
constitute substantial evidence on the record” and demonstrated that “the Commission failed to
adequately address an important aspect of the issue.” DAK Americas I, 456 F. Supp. 3d at 1359
(citing Siemens Energy, Inc. v. United States, 38 CIT __, __, 992 F. Supp. 2d 1315, 1324 (2014),
aff’d, 806 F.3d 1367 (Fed. Cir. 2015); SKF USA, Inc. v. United States, 263 F.3d 1369, 1382–83
(Fed. Cir. 2001)). 	On remand, the Commission clarified that the significance of this data was
limited because [[ 	]] represented a significant volume of imports from [[ 	]]
rather than [[ 	]].
Remand Views at 18. 	Further, the Commission explained that it excluded this data because of
certain inaccuracies and aberrancies in the information it provided to the Commission. Id. at 18–
19. Specifically, based on examination of the importer’s questionnaire response, the Commission
concluded that “[[
]]” and that the data contained [[
]]. 	Id. at 18–19. 	Further, because [[
]]. Id. at 19. Thus,
the Commission again excluded this data.
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Plaintiffs challenge the renewed exclusion of this data, arguing that, “[e]ven if [it] pertains
only to one subject country in 2016, it represents almost [[ 	]] of the import volume of that
country in 2016, the year of the import surge that is the focus of this case” and therefore that “the
Commission has failed to justify its continued decision to exclude entirely the [[ 	]]
pricing data.” Pls.’ Br. at 23–24. The Government responds that “[t]he Commission reasonably
declined to include this ‘aberrant’ price data.” Def.’s Br. at 11. Further, the Government explains
that the Commission did not wholly disregard the impact of this importer because the Commission
“used, ‘the import volume and value data provided by [[ 	]] in its importers’
questionnaire,” but simply excluded its price data for the reasons explained. Id. at 10–11.
The court concludes that the Commission complied with the remand instructions and
affirms the Commission’s decision to exclude [[ 	]] indirect pricing data. 	The
explanation regarding the relative weight of the data and the aberrancies requiring the data to be
excluded remedies the deficiency in the Original Views of not addressing a significant aspect of
the issue. 	The Commission did not entirely exclude data from this importer and sufficiently
explained why it excluded the data it did. The court is unpersuaded by Plaintiffs’ attempt to have
the court reweigh this evidence. See Int’l Indus., 311 F. Supp. 3d at 1333 (directing the court to
defer to the Commission’s role as trier of fact); Coal. of Gulf Shrimp Indus., 71 F. Supp. 3d at
1365 (“The [Commission] has discretion to select a data set that it will use in its investigation . . .
.”). 	Based on its explanation, there was a rational connection between the exclusion and the
aberrancy of the data. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50.
3. 	Inclusion of [[ 	]] Data
The third issue identified by the court as to the Commission’s selection of quarterly pricing
data related to the Commission’s inclusion of U.S. purchaser [[ 	]] questionnaire response
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and pricing data despite showing lower priced imports and overselling of subject imports,
respectively. DAK Americas I, 456 F. Supp. 3d at 1360–61; see also Pls.’ Mem. of L. in Supp. of
Mot. for J. on Agency R. at 25, May 16, 2019, ECF No. 43. The court concluded that, while “there
may be a reasonable explanation for the Commission’s determination,” the Commission erred by
failing to provide any explanation of this decision. DAK Americas I, 456 F. Supp. 3d at 1361. On
remand, the Commission explained that it continued to include this data because it found no
contradiction in [[ 	]] data or responses. Remand Views at 20. The importer [[
]] was asked as both a [[ 	]] and importer whether PET resin imports were lower priced
than domestically produced PET resin, which to the first it answered [[ 	]] to a yes-no question
and to the second it answered with numerical price data. Id. The Commission concluded that the
general answer in response to the first questionnaire was context-specific and therefore had a
limited value in the Commission’s analysis of underselling. Id. at 20–21. Thus, it determined that
the specific price data from the importer questionnaire to be “more probative for our price analysis
than general comments about perceived price in the market and do not question the accuracy of
either of its questionnaire responses.” Id. at 22. Therefore, the Commission concluded that there
was no inconsistency in including both the questionnaire response and quarterly price data in its
analysis. Id. at 22.
Plaintiffs challenge the Commission’s explanation by contending that it improperly
weighed [[ 	]] pricing data because its questionnaire indicated “[t]hat subject imports
were [[ 	]].” 	Pls.’ Br. at 25. 	The Government characterizes
Plaintiffs’ position as proposing that the Commission exclude specific price data in favor of “a
single answer to a yes-no question.” 	Def.’s Br. at 12. 	The Government instead argues that the
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Commission correctly “found [[ 	]] specific price data more probative for its price
analysis than general comments.” Id. at 12.
The court affirms the Commission’s inclusion of [[ 	]] pricing data in light of its
further explanation of this issue on remand. See Nippon Steel Corp., 458 F.3d at 1359 (noting that
the court defers to the Commission as “the expert factfinder . . . to decide which side’s evidence
to believe”). The Commission adequately explained its decision; it is not the province of the court
to reweigh this evidence. Int’l Indus., 311 F. Supp. 3d at 1333 (stating that the court affords the
Commission “considerable discretion in evaluating information obtained from questionnaires.”).
C. 	Other Data and Questionnaire Responses Undermine the Commission’s
Conclusion
In its original opinion, the court also identified several pieces of unaddressed or
inadequately addressed evidence on the record that undermined the Commission’s conclusion that
there was no significant underselling in the U.S. PET resin market during the POI. Specifically,
the court instructed the Commission to address on remand the following: (1) purchaser price
rankings from questionnaires; (2) reported prices from purchasers who purchased subject imports
instead of domestic; (3) pricing data for direct imports showing underselling; and (4) significant
market share gains in a price-sensitive market characterized by product fungibility. 	DAK
Americas I, 456 F. Supp. 3d at 1361–62. 	The Commission addressed each point on remand to
explain why these issues did not undermine its no significant underselling determination.
1. 	Purchaser Price Rankings from Questionnaires
The court previously noted that the record showed “twenty purchaser responses of
underselling and only nine of overselling.” Id. at 1361. However, the Commission simply noted
that “we have considered this information, we do not believe it outweighs the actual price data we
have collected that show that subject imports are typically higher priced” without further
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explanation of how this determination reconciled with the rest of its determination. 	Id. (citing
Original Views at 38 n.150). On remand, the Commission explained that it “do[es] not find that
simply adding purchaser responses to a rating question is particularly meaningful in isolation,
given that such an approach does not account for factors such as product mix and volumes
represented by the responses.” Remand Views at 34. As to the rankings, it found that “subject
imports from three of the five subject countries were more often rated as comparably priced or
higher priced than the domestic product, [and thus do not] compel[] a finding that the cumulated
subject imports were generally priced lower than the domestic product, let alone significantly
undersold the domestic product,” especially “when considered alongside the detailed and
comprehensive quarterly price data.” 	Id. 	The Commission noted that, even considering an
addition of responses in isolation, twenty purchasers indicated that imports and domestic product
were comparably priced or higher priced to the twenty purchasers that indicated that imports were
lower priced than the domestic product. Id. at 35. Thus, the Commission concluded that “the even
split” in responses cannot outweigh “the comprehensive and data-specific quarterly price
comparisons which show predominant overselling by the subject imports.” Id.
Plaintiffs challenge this explanation as insufficient. Pls.’ Br. at 17. Plaintiffs contend that
the Commission cannot include answers indicating that imports were priced comparable to
domestic product with those that indicated imports were priced higher than the domestic product
because “[t]he proper analysis -- and the approach the Commission typically follows -- is to simply
take off the neutral responses regarding comparability and not add them to either the higher- or
lower-priced group.” Id. at 19 n.17 (citing, e.g., Certain Crystalline Silicon Photovoltaic Products
from China and Taiwan, Inv. Nos. 701-TA-511 and 731-TA-1246–47 (Final), USITC Pub. 4519
(Feb. 2015)). 	Additionally, Plaintiffs argue that the Commission did not request volume data
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alongside the questionnaire responses, the Commission regularly relies upon these questionnaire
responses in its determinations, and that this determination is a piecemeal dismissal of purchaser
data without an assessment of the record as a whole. Id. at 20. The Government responds that
“the Commission employed a methodology in its price analysis that accounted for factors such as
product mix and volume.” 	Def.’s Br. at 14–15. 	Further, the Government contends that the
Commission explained that Plaintiffs’ proposed methodology “overlook[ed] the sheer volumes of
shipments . . . that were accounted for in the quarterly price comparisons” and that it “found the
coverage levels for the price data to be ‘substantial.’” Id. at 16 (quoting Remand Views at 34).
The Government also argues that “the results of Plaintiffs’ approach [do not] outweigh the
Commission’s comprehensive data-driven price comparisons showing predominant overselling by
the subject imports.” Id. at 15–16.
The court concludes that the Commission complied with the remand instructions in
providing this further explanation. The court agrees with the Government that the methodology
employed by the Commission reasonably accounts for product mix and volume in accordance with
previous cases. 	See Coal. of Gulf Shrimp Indus., 71 F. Supp. 3d at 1365 (deferring to the
Commission’s methodology in selecting data and weighing product selection and volume
considerations); Whirlpool Corp. v. United States, 37 CIT 1775, 1786–87, 35 ITRD 2513 (2013)
(affirming 	the 	Commission’s 	selection 	of 	import 	data 	based 	on 	product 	and 	volume
considerations); Def.’s Br. at 14–15. 	While Plaintiffs note that the court’s previous opinion
doubted the Commission’s conclusion that there was no significant underselling based on the
quarterly pricing data of eight importers rather than the questionnaire responses of sixteen
importers, Pls.’ Br. at 19; DAK Americas I, 456 F. Supp. 3d at 1361–62, the court now accepts the
Commission’s decision in light of its explanation that it more heavily weighed the volume of
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imports over the quantity of importers and more detailed quarterly pricing data over more general
narrative responses. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. As the Government notes,
19 USC § 1677(7)(C)(ii) does not require the Commission “to determine whether there has been
significant price overselling, or a lack of significant underselling and overselling” which a rating
of “comparable” may show, but rather “whether there has been significant price underselling.”
Def.’s Br. at 16 n.15. The court defers to the Commission’s weighing of the evidence, including
its further explanation of how the Commission understands the questionnaire responses in relation
to the quarterly pricing data. See Int’l Indus., 311 F. Supp. 3d at 1336.
2. 	Reported Prices from Purchasers Who Purchased Subject Imports
Instead of Domestic
The court also noted that the Commission failed to address or explain the weight of
evidence showing that “[e]leven of nineteen purchasers shifting from buying the U.S. product
reported the imports were lower-priced” and that “most purchasers’ reported import prices were
lower.” DAK Americas I, 456 F. Supp. 3d at 1362. Thus, the court concluded that this constituted
evidence that undermined the Commission’s finding that underselling was not significant, and
overselling predominated. 	Id. 	On remand, the Commission addressed the data indicating that
eleven purchasers shifted to buying lower-priced imports by explaining that
[t]hese responses do not specify quantities, prices, and time periods of purchasing,
unlike the price data. 	. . . 	[O]nly four of those 11 purchasers who reported that
subject imports were priced lower than the domestic product also reported that the
lower price of the subject imports was a primary factor in purchasing decisions.
Nor did any of those four purchasers report reducing their share of purchases from
domestic sources over the POI.
Remand Views at 32–33 (footnotes omitted). Furthermore, the Commission noted that the volume
of subject imports represented by these four purchasers was quite small, particularly when
compared to the volume of price data showing overselling. Id. at 33.
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Plaintiffs argue that “the Commission repeats the same error it committed [before],
focusing on the reason the purchasers gave for the purchase rather than their report that imports
were lower priced.” Pls.’ Br. at 17. Plaintiffs contend that “[t]his is the very approach the [c]ourt
rejected because it goes to a different question than whether the imports were, in fact, lower
priced.” 	Id. at 17 (citing DAK Americas I, 456 F. Supp. 3d at 1362). Plaintiffs also claim that
“[t]he Commission’s volume-based” analysis “improperly ignores the significant volumes bought
by all the purchasers that said imports were lower priced -- the key fact to be examined on remand.”
Id. at 17. 	The Government responds that “the Commission reasonably gave more weight in its
analysis of underselling to the voluminous, specific price data” than the “yes-no responses” of
these particular importers. Def.’s Br. at 17.
The court concludes that the Commission adequately addressed this evidence on remand.
By providing further explanation and context for the responses, the Commission explained that it
did consider this evidence and explained the weight it gave this evidence relative to other data on
the record. Plaintiffs contend that the court previously rejected such an approach. That is not so.
Rather, the court’s previous opinion noted that the Commission failed to adequately address this
evidence. 	Having explained its consideration of this evidence, 	the court defers to the
Commission’s determination as the expert trier of fact. See Nippon Steel Corp., 458 F.3d at 1359;
Int’l Indus., 311 F. Supp. 3d at 1336.
3. 	Direct Import Pricing Data Showing Underselling
The court previously concluded that direct import pricing data “showed underselling in [[
]] percent of comparisons,” which “constitute[d] evidence that fairly undermine[d] the
Commission’s overselling finding . . . that the Commission failed to address.” DAK Americas I,
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456 F. Supp. 3d 1362. 7 On remand, the Commission explained that of the four subject products,
it received useable data for direct import pricing for just one product. Remand Views at 29–30.
The data did show that the value of those direct imports was lower than those for the domestic
product; however the volume was “small relative to the total volume of subject imports and to the
volume of importers’ sales of subject imports that oversold the domestic product.” 	Id. at 30
(explaining that the direct imports showing underselling composed just a quarter of the volume of
the imports showing overselling). Further, the Commission explained that comparison of direct
imports to all subject imports was limited by the fact that direct imports “do not capture other costs
beyond the landed duty-paid costs that importers may incur.” Id. at 31.
Plaintiffs contend that the “Commission repeats exactly what it said in the original
determination,” i.e. “that the volume of direct imports was less than the volume of indirect
imports.” 	Pls.’ Br. at 21. 	Further, Plaintiffs argue that the Commission did not “consider this
evidence of underselling on direct import sales in conjunction with the other record data,” but
rather “again simply compares the volumes . . . and finds the direct sales volumes to be outweighed
by the [quarterly price] sales volumes.” Id. The Government responds that “the Commission did
not find that the purchase cost data for [direct imports] reflected price ‘underselling’ but instead
reflected ‘generally lower’ values.” Def. Br. at 18–19 (citing Remand Views at 30). Therefore,
the Government argues that “the Commission reasonably found that the purchase cost data for
[direct imports] . . . was not as probative to the Commission’s price analysis as the actual
7 Relatedly, the court remanded for further explanation by the Commission its exclusion of [[
]] direct quarterly pricing data showing underselling. DAK Americas I, 456 F. Supp.
3d at 1362. The court addresses this specific issue in combination with the Commission’s further
explanation of its exclusion of [[ 	]] data above. See Sec. I.B.1. supra.
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[quarterly] price data showing predominant overselling.” Id. at 20 (citing Remand Views at 30–
31).
The court concludes that the Commission’s further explanation that the purchase cost data
for direct imports showing lower costs does not undermine its no significant underselling
conclusion and complies with the remand instructions. 8 	Because the Commission provided
adequate explanation of the limited comparability and smaller relative volumes of direct import
data with quarterly price data, the court defers to the Commission in the weight it assigns this
evidence. 	See Int’l Indus., 311 F. Supp. 3d at 1336. 	As to Plaintiffs’ contention that the
Commission did not consider this evidence in conjunction with other record evidence tending to
show underselling, the court notes that the Commission showed that it did consider the direct
import data in its underselling analysis, but ultimately concluded that the quarterly price data was
“paramount and the most probative price information.” Remand Views at 16. The Commission
addressed the fact that the direct import data was underinclusive of costs as compared to quarterly
price data and that the [[ 	]] were related to the supply
constraints discussed in detail below. 	Id. at 8–10, 15. 	This provides sufficient explanation to
support the Commission’s conclusions and for the court to conclude that this determination was
based on substantial evidence. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.
4. 	Significant Market Share Gains in a Price-Sensitive Market
Characterized by Product Fungibility
Finally, the court previously noted that the Commission’s conclusion that the U.S. PET
resin market was highly price-sensitive and characterized by product fungibility warranted further
explanation because of Plaintiffs’ argument that “subject imports’ market share gains came at the
8 As discussed, the court also rejects Plaintiffs’ contention that the Commission erred by not
combining direct import pricing data with quarterly pricing data. See supra n.5.
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same time as domestic industry’s lost market share, and that the domestic industry suffered a steep
decline in financial condition during the POI.” DAK Americas I, 456 F. Supp. 3d at 1362. On
remand, the Commission explained that
increased imports by the domestic producers themselves account for an equivalent
percentage of the loss of market share by domestically produced product. 	The
domestic industry’s own imports of PET resin in 2016 thus explain most . . . of the
5.4 percentage-point decline in the domestic industry’s market share that year, and
by their own representations the imports were due to the domestic industry’s supply
limitations, not a need to access low-priced imports to compete in the market.
Remand Views at 50. 	This added further explanation to the Commission’s statement in the
Original Views that, despite increasing demand and increased shipments by the domestic industry
during the POI, the imports “did not significantly undersell the domestic like product” but that the
domestic industry “ceded some market share . . . for non-price reasons” as evidenced by the
domestic industry’s improved financial condition in 2016 and higher-priced imports throughout
the POI. Original Views at 45.
Plaintiffs contest this explanation for the subject import market share gains. In their view,
domestic producers increased imports because the price-sensitive U.S. PET resin market was
flooded with low-priced imports. 	Pls.’ Br. at 14. 	Plaintiffs note that “Congress and the
Commission have recognized that imports by a domestic producer based on a need to meet
customer price demands reflect defensive efforts to survive, not a self-inflicted injury.” 	Id.
Further, Plaintiffs contend that “[t]he Commission does not address why, if there was a shortage
in the market, non-subject imports did not gain market share along with subject imports.” Id. The
Government responds that the Commission’s year-by-year focus and examination of the domestic
industry’s own importation behavior supports its conclusion that the domestic industry contributed
to domestic production market share loss rather than being caused by competition from lower-cost
imports. Def.’s Br. at 28–29.
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The court notes that Plaintiffs’ continued dispute with the Commission on the question of
market share depends upon the court’s acceptance or rejection of the Commission’s re-examined
findings regarding the U.S. PET resin market. Because the Commission on remand re-examined
the record to explain that in addition to price-sensitivity, the U.S. PET resin market was also
subject to availability and quality, which the court accepts, Plaintiffs’ arguments carry less weight.
Furthermore, the court accepts the Commission’s explanation of the existence of supply constraints
throughout the POI, discussed in detail below, that provides further reconciliation and support for
the Commission’s finding of no significant underselling despite increased imports and loss of
market share by the domestic industry. 	See Remand Views at 6–12. 	This discussion includes
consideration of the domestic industry’s non-subject imports in comparison to subject imports,
directly contrary to Plaintiffs’ claims. See, e.g., Remand Views at 9 (“[T]he domestic industry’s
imports of subject PET resin rose faster and by larger amounts[] and increased its share of the U.S.
market at a greater rate, than its imports of nonsubject PET resin.”). Because of the Commission’s
added explanation of market conditions and supply constraints, the court concludes that the
Commission’s re-examination of the domestic industry’s market share losses was based on
substantial evidence and in accordance with the remand instructions.
In short, the court concludes that the Commission complied with the court’s instructions to
further explain its “no significant underselling” conclusion, including its added analysis of market
conditions, consistency with prior determinations, selection of price data, and the relative weight
it assigned varying pieces of evidence. The court now affirms the Commission’s determination
that there was no significant underselling by imports in the U.S. PET resin market during the POI
as based on substantial evidence and in accordance with law.
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II. 	The Commission’s Conclusion that Supply Constraints Caused Domestic
Industry Market Share Loss Is Based on Substantial Evidence.
In DAK Americas I, the court held that “the Commission’s conclusion -- that supply
constraints rather than underselling were the cause of market share shifts -- is unsupported by
substantial evidence.” 456 F. Supp. 3d at 1363. In reaching this conclusion, the court identified
four aspects of the record and the Commission’s determination that undermined its conclusion: (1)
the Commission identified no specific supply constraints prior to October 2016; (2) the majority
of narrative responses solely cited post-October 2016 supply constraints; (3) the Commission’s
determination was inconsistent with its prior determinations that later-in-time supply constraints
cannot explain earlier-in-time subject import increases; and (4) the Commission failed to
adequately respond to conflicting evidence. Id. at 1363–66. On remand, the Commission again
found supply constraints in the domestic industry’s ability to supply U.S. demand throughout the
POI. 	Remand Views at 5. 	The Commission provided additional explanation of this finding,
including evidence supporting that there were supply constraints throughout the POI, addressed
the 	evidence 	the 	court 	previously 	identified 	as 	conflicting, 	and 	distinguished 	seemingly
inconsistent determinations cited by the court. Id. at 5–12, 48–51.
A. 	Evidence of Supply Constraints Throughout the POI
The court previously noted that the Commission’s Original Views focused on evidence
occurring late in the POI to explain the supply constraints throughout the POI. 	This evidence
included Hurricane Matthew in October 2016, Hurricane Harvey in August 2017, and the
bankruptcy of domestic supplier M&G in September 2017. DAK Americas I, 456 F. Supp. 3d at
1363–64. The court concluded that, when examined together and separately, these events could
not account for the Commission’s conclusion that supply constraints throughout the POI caused
the market shifts away from the domestic industry to imports. Id.
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On remand, the Commission addressed this conclusion and provided further explanation
of the evidence supporting domestic industry supply constraints. First, the Commission noted that
purchaser responses indicating domestic supply constraints “were [not] limited to any fixed
interval during the POI, and the absence of any such time circumscription does not suggest that
the constraints were confined to latter portions of the POI.” Remand Views at 6 (“U.S. purchasers
testified that supply constraints began early in 2015.”). 	Rather, the Commission explained that
“domestic producers kept their capacity generally static throughout the POI under the assumption
that [the construction of M&G’s planned production facility in Corpus Christi] would bring on
additional capacity that could meet the growing demand,” beginning in 2015 and “were known
and relevant for years prior to October 2017, and at least as early as October 2015.” Id. at 7–8.
Further, as discussed above, the Commission pointed to the domestic industry’s own increase in
imports as indication of supply constraints. Id. at 8–10. As discussed, the Commission noted that
quality and availability were important factors to purchasers’ decisions, including for “[t]en of 14
purchasers that switched to subject imports” who detailed supply constraints since 2015. 	Id. at
11–12, 51.
Plaintiffs again contest the Commission’s finding of supply constraints throughout the POI.
Plaintiffs argue that the Commission’s contention “that unspecific supply constraint claims must
have occurred before October 2016 is not substantial evidence” because “[o]nly three out of 10
purchasers identified specific domestic supply constraints all of which occurred after October
2016.” 	Pls.’ Br. at 5 (citing Original Views at V-31–V-33). 	Plaintiffs also challenge the
Commission’s continued reliance on purchaser narratives and its added reliance on hearing
testimony as further evidence of its conclusion. 	Id. at 4–6. 	Therefore, Plaintiffs argue that,
“contrary to the Commission’s unsupported conclusion that the domestic industry intentionally
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constrained supply to make way for M&G, the record shows that the domestic industry was trying
to make up ground in the wake of the 2016 trade relief, but such efforts were stunted by the next
subject import wave.” 	Id. at 11; id. at 11 n.10 (“It is absurd to suggest . . . that the domestic
industry ‘chose not to expand capacity’ . . . as opposed to the rational, record-based explanation
that it simply could not do so after being hammered by one group of unfairly-untraded imports and
immediately facing another.”). 	The Government responds that, “[i]n combination with the
questionnaire responses . . . indicating supply constraints beginning in 2015 and through 2016 and
the domestic industry’s own importation behavior, the Commission reasonably found ‘that this
sworn witness testimony about market conditions over a span of years beginning in late 2014
evinces that the [supply] constraints spanned the POI.” Def.’s Br. at 25 (quoting Remand Views
at 48).
Given the additional explanation by the Commission, the court affirms the Commission’s
conclusion that supply constraints were the cause of domestic industry ceding market share rather
than low-priced imports. The Commission added explanation and pointed to specific supporting
evidence in accordance with the court’s instructions. 	Plaintiffs’ arguments to the contrary are
unavailing. 	Contrary to Plaintiffs’ claim, the court did not “reject” purchaser narratives as
supportive of supply constraints. 	See Pls.’ Br. at 4–6. 	Rather, the court noted aspects of the
purchaser narratives that were unaddressed or unexplained in light of the Commission’s
conclusions regarding supply constraints. 	DAK Americas I, 456 F. Supp. 3d at 1364. 	The
Commission has now reconciled that evidence with its conclusion about domestic supply
constraints and the court accepts that conclusion as based on substantial evidence. 	See Motor
Vehicle Mfrs. Ass’n, 463 U.S. at 43. That the domestic industry could not meet increased demand
during the POI, does not, as Plaintiffs contend, indicate that the domestic industry was necessarily
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harmed by imports. 	See Pls.’ Br. at 14. 	Rather, as the Commission explained, the domestic
industry’s inability to supply domestic demand caused increased purchases of imports, even in
instances where the imports were higher priced. 	Remand Views at 51. 	The Commission
sufficiently explained that this choice made by the domestic industry was made in light of a market
that anticipated further domestic production at the M&G facility, which was unexpectedly delayed
and then cancelled as the POI proceeded that left the domestic industry unable to effectively supply
the domestic market as planned. 	Id. at 7–8. 	Similarly, the Commission’s reliance on hearing
testimony that may have been contradicted elsewhere in the record was also explained and based
on substantial evidence. 9 	Thus, the court disagrees 	with Plaintiffs’ 	contention that the
Commission’s explanation of supply constraints was absurd. 	Rather, the court, faced with two
plausible explanations of record evidence, defers to the Commission as the expert factfinder. See
Nippon Steel Corp., 458 F.3d at 1359. 	The court accepts the Commission’s explanation of its
conclusion that supply constraints caused the domestic industry to cede market share in light of its
analysis of hearing testimony, purchaser narratives, direct import data, and quarterly price data.
See id. at 1358; Int’l Indus., 311 F. Supp. 3d at 1333.
9 Plaintiffs contend that the testimony cited by the Commission was based on impermissible
speculation “that domestic producers did not raise their prices in 2016 in the face of Corpus Christi
coming online -- a different point than the Commission’s interpretation of early supply
constraints.” Pls.’ Br. at 9. By contrast, the Government claims that “Graham Packaging stated
that during the preliminary phase of these investigations, it testified about product shortages.
During the preliminary phase, it testified about the effect of M&G’s anticipated production facility
on the market ‘every year since 2015.’” Def.’s Br. at 25 n.24 (citation omitted). The Government
also responds that “Plaintiffs seem to divorce the economic effects of supply and demand on price
by arguing that witnesses could not speak about price and supply at the same time when testifying
that the start up delay of M&G’s anticipated production facility, during 2015 and 2016, did not
increase prices despite increased demand because of domestic competition.” Id. The court agrees
with the Government and rejects Plaintiffs’ attempt to have the court re-weigh conflicting hearing
testimony.
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B. 	Consistency with Prior Determinations
In previously determining that the Commission’s conclusion regarding domestic industry
supply constraints was unsupported by substantial evidence, the court pointed to previous
decisions by the Commission in which it noted that “supply constraint events that follow subject
import increases cannot be the cause of them.” DAK Americas I, 456 F. Supp. 3d at 1364. The
court therefore ordered the Commission to address Certain CRS Products and Cold-Rolled Steel
Flat Products on remand and to explain or reconcile any inconsistencies between those decisions
and its remand determination. 	Id. at 1364–65. 	As instructed, the Commission addressed those
prior 	determinations. 	Remand 	Views 	at 	48–49. 	The 	Commission noted 	that 	in 	those
determinations it found that the “supply constraints could not explain ‘the magnitude and duration’
of the increase in subject imports.” 	Id. at 48. 	However, here the Commission found that the
“market conditions keyed to M&G’s construction that began in 2014 and affected market
participant’s behavior throughout the POI” including the domestic industry’s own increased
imports of PET resin could explain the imports throughout the POI. Id. at 49. Further, the events
occurring later in the POI “exacerbated these already existing supply constraints.” Id. Thus, unlike
the two prior determinations, the supply constraints identified by the Commission in this
investigation were not similarly limited in duration or magnitude. Id. at 51.
Plaintiffs argue that these distinctions “ignore[] that the acute supply shortage on record
here was also limited -- in fact limited to the latter part of the period and after the subject import
surge, making [Certain CRS Products and Cold-Rolled Steel Flat Products] highly relevant.” Pls.’
Br. at 13–14 n.13. Similarly, Plaintiffs argue that “[t]he Commission’s mischaracterization of this
underlying record as showing supply shortages ‘throughout the POI’ also improperly conflates the
long-term condition of the domestic industry’s capacity to supply the entire U.S. market with the
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acute supply factor of M&G’s bankruptcy in October 2017.” Id. In support of the Commission’s
position on these past determinations, the Government explains that the Commission “cited various
factors examined in the other cases that distinguished the other cases from the facts of the instant
investigations.” Def.’s Br. at 22.
The court concludes that the Commission complied with the remand instructions by further
explaining its conclusion regarding the existence of supply constraints throughout the POI and by
distinguishing these cases based on the more limited timing of supply constraints in those
decisions. The Commission properly distinguished those decisions based on its determination that
“the prior determinations are inapposite such that it is not in fact a departure at all.” DAK Americas
I, 456 F. Supp. 3d at 1356 (citing Atchison, Topeka & Santa Fe Ry., 412 U.S. at 808; British Steel
PLC, 127 F.3d at 1475; Chisholm, 656 F.2d at 47); see also id. at 1354–55 (discussing Cleo, 501
F.3d at 1298–99; Usinor, 26 CIT at 792). 	Plaintiffs’ arguments to the contrary rely upon their
view that the Commission’s supply constraints conclusion was erroneous. Thus, for the reasons
stated above, the court also rejects this challenge.
C. 	Conflicting Arguments and Evidence
Finally, the court ordered the Commission to address conflicting arguments and evidence
weighing against its conclusion regarding the domestic industry’s supply constraints. Id. at 1365–
66. Specifically, the court asked the Commission to further address (1) its conclusion that domestic
producers’ own increase in imports supported its supply constraints conclusion when those imports
represented a small portion of the subject imports during the POI; (2) purchaser narratives citing
post-October 2016 supply constraint events; and (3) the increase in subject imports despite being
higher-priced. 	Id. 	On remand, the Commission addressed these points. 	First, as to domestic
producers’ own imports, the Commission noted that “by their own representations the imports
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were due to the domestic industry’s supply limitations, not a need to access low-priced imports to
compete in the market.” Remand Views at 50. The Commission also explained that the purchaser
questionnaire responses indicated supply constraints by the domestic industry throughout the POI
because of increased demand and static production. Id. at 5. Finally, the Commission explained,
“[o]f 25 responding U.S. purchasers, 19 reported supply constraints since the beginning of 2015.
. . . 	Other purchasers reported that, since the beginning of 2015, a number of different issues
caused supply constraints, including domestic producers placing many customers on allocation,
delayed deliveries, and unavailability due to weather.” Id. at 5–6.
Plaintiffs contest each of these points. First, Plaintiffs argue that “[t]he [c]ourt decisively
held that” there was no substantial evidence for “U.S. producers’ decision to increase imports was
indicative of supply constraints throughout the period.” Pls.’ Br. at 6. Second, Plaintiffs’ argue
that the Commission mistakenly emphasizes domestic producers’ non-subject imports rather than
examining the impact its subject imports had on market share loss and the impact by imports of
non-producers, together. 	Id. at 7. 	Finally, Plaintiffs argue that without this evidence, the
Commission failed to address “the record [or] other evidence that would support its conclusion.”
Id. at 8. The Government responds that Plaintiffs mischaracterize the court’s previous opinion that
ordered the Commission to address conflicting evidence and did not reject that evidence. Def.’s
Br. at 29 n.26. Rather, it argues that the Commission’s finding regarding the domestic producers
own imports “is important to demonstrate the choice that domestic producers made to import
instead of produce PET resin themselves, regardless of the amount of excess production capacity
they reported to possess.” Id. at 28.
The court concludes that the Commission adequately addressed the enumerated pieces of
conflicting evidence in its remand decisions in accordance with the court’s instructions. First, the
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Commission’s explanation that the domestic industry’s imports, despite being small relative to the
subject import increase, contributed to its market share loss provides adequate explanation of the
Commission’s understanding of this evidence. See Remand Views at 9–10. That plus the domestic
industry’s own representations that its imports were not caused by a need to compete with low-
cost imports also explains why there were increased imports that were higher priced. The court is
not persuaded by Plaintiffs’ additional challenges on these points, as the court did not reject any
reliance on this evidence, DAK Americas I, 456 F. Supp. 3d at 1365–66, and the Commission
itself did not rely exclusively on the disputed evidence, but rather incorporated it as part of its
larger explanation of domestic industry supply constraints. 	Remand Views at 9. 	Thus, as the
expert decisionmaker, the Commission is entitled to deference even when reasonable minds may
disagree about the evidence. Nippon Steel Corp., 458 F.3d at 1359.
Finally, Plaintiffs identify additional pieces of evidence that they claim also conflict with
the Commission’s supply constraint conclusion but which the Commission did not address.
Specifically, Plaintiffs cite (1) testimony from purchasers and respondents’ counsel that there were
no supply shortages until later in the POI, Pls.’ Br. at 11; (2) “evidence of U.S. producers’ low
capacity utilization, lost market share, and declining profitability,” id. at 12; (3) evidence that the
domestic industry was able to increase its capacity utilization that undermines the Commission’s
“conclusion that the domestic industry was unable or unwilling to supply the U.S. market,” id.; (4)
previous cases in which the Commission stated that material injury is not precluded by reason of
subject imports where the domestic industry could not satisfy the demand because of supply
constraints, id. at 13 & n.12 (citing Citric Acid and Certain Citrate Salts from Belgium, et al., Inv.
Nos. 731-TA-1374–76 (Final), USITC Pub. 4799 (July 2018) (“Citric Acid”); Frozen Warmwater
Shrimp from China, et al., Inv. Nos. 701-TA-491-493, 495, and 497 (Final), USITC Pub. 4429
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(Oct. 2013); Utility Scale Wind Towers From China and Vietnam, Inv. Nos. 701-TA-486 and 731-
TA-1195–96 (Final), USITC Pub. 4372 (Feb. 2013); Small Diameter Graphite Electrodes From
China, Inv. No. 731-TA-1143 (Final), USITC Pub. 4062 (Feb. 2009)); (5) their contention that
increased domestic producer imports were caused by a price-sensitive market flooded with low-
priced imports, id. at 14; and (6) the fact that non-subject imports did not gain market share along
with subject imports given the shortage in the market, id.
The court does not agree that the Commission has not addressed these pieces of evidence
and arguments. The Commission addressed each of these pieces of evidence in its Remand Views,
drew reasonable inferences, and explained how it weighed the evidence on the record. Remand
Views at 6–7, 46–49 (addressing hearing testimony); id. at 51–53 (addressing domestic industry
capacity utilization, lost market share, declining profitability); id. at 6–7 (addressing domestic
industry’s capacity utilization); id. at 8–9 (addressing domestic industry’s increased imports); id.
(comparing the volume and impact of non-subject imports). 	Plaintiffs’ citations to allegedly
unaddressed evidence boil down to an attempt to re-weigh the evidence or draw their own
inferences from the evidence. 	However, the court defers to the Commission as the expert fact
finder and declines to disturb the Commission’s findings. Nippon Steel Corp., 458 F.3d at 1359.
As to the previous decisions in which material injury is not precluded by reason of supply
constraints, Plaintiffs’ citations only support that the presence of supply constraints does not
always preclude a material injury finding, not that there are never occasions in which the presence
of supply constraints explains domestic industry rather than harmful imports. See, e.g., Citric Acid
at 31–32 (noting “that the fact that a domestic industry may not be able to supply all of demand
does not mean that it cannot be materially injured” . . . 	but ultimately concluding that supply
constraints were not “so significant as to explain the significant and increasing volume of subject
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imports”). The Commission adequately explained that the domestic supply constraints in the U.S.
PET resin market during the POI precluded such a finding in this instance, and thus the prior cases
are inapposite. See Remand Views at 5–8.
In short, the court upholds the Commission’s further explanation of its conclusion that supply
constraints, rather than low-priced imports, caused any harm to the domestic industry as based on
substantial evidence and in accordance with law.
III. 	The Court Sustains the Commission’s No Adverse Impact Determination.
Based on the Commission’s conclusions that there was no significant underselling of
subject imports and that domestic supply constraints caused the surge in imports during the POI,
the Commission concluded that there was no adverse impact or material injury to the domestic
industry caused by subject imports. 	In examining the Commission’s Original Views, the court
concluded that the previously enumerated deficiencies with the Commission’s underselling and
supply constraint conclusions undermined its adverse impact determination. 	DAK Americas I,
456 F. Supp. 3d at 1366–67. Further the court noted that the domestic industry’s poor financial
indicators during the POI compared to the post-POI period after subject imports receded also
undermined the no adverse impact decision regardless of some evidence indicating domestic
industry improvement in 2016. Id.
On remand, the Commission stated that “[h]aving reexamined and supplemented our
impact findings based on the [c]ourt’s instructions, we again find that subject imports did not have
a significant impact on the domestic industry.” Remand Views at 53. For the reasons discussed
extensively above, the court concludes that the Commission’s reliance on its no significant
underselling 	and 	domestic 	supply 	constraints 	conclusions 	to 	support 	its 	adverse 	impact
determination is supported by substantial evidence in light of the Remand Views. Regarding the
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domestic industry’s financial indicators, the Commission on remand noted that “[t]he responses
regarding lost sales and lost revenue likewise reflect near unanimous reporting by purchasers that
domestic producers had supply issues.” 	Id. at 51. 	Further, the Commission stated that “the
domestic industry’s condition improved in 2016, the year with the most significant increase in
subject imports” yet “subject imports predominantly oversold the domestic like product in 2016.”
Id. at 52. Similarly, the Commission concluded that “the domestic industry increased its domestic
shipments each year of the POI, including 2016, and its full-year capacity utilization rate was the
highest on the record in 2016.” Id.
Plaintiffs rely on their arguments regarding the Commission’s underselling and supply
constraint conclusions to contend that the Commission’s no adverse impact determination is again
unsupported by substantial evidence. Pls.’ Br. at 29. In support of the Commission’s conclusion,
the Government argues that “[h]aving provided a more detailed explanation of its findings that
subject imports predominantly oversold the domestic like product and that supply constraints
occurred throughout the POI, the Commission on remand likewise provided further detail in its
impact analysis.” Def.’s Br. at 30. Thus, it contends that “[b]ased on the totality of evidence in
the record, the Commission reasonably concluded again that the subject imports did not have a
significant impact on the domestic industry.” Id. at 31.
The court concludes that the Commission’s “no adverse impact” determination as
explained in the Remand Views is based on substantial evidence and consistent with the remand
instructions. Having remedied the previously identified deficiencies regarding its underselling and
supply constraint conclusions, the Commission has also provided further explanation and support
for its no adverse impact determination. 	As to the domestic industry’s financial conditions, the
court concludes that the Commission’s explanation as to why any declines were not related to
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subject imports was reasonable and based on substantial evidence. See Motor Vehicle Mfrs. Ass’n,
463 U.S. at 43. Therefore, the court sustains the Commission’s “no adverse impact” determination.
CONCLUSION
For the reasons stated above, the court sustains the Remand Views and enters judgment in
favor of the Government.
SO ORDERED.
/s/ 	Gary S. Katzmann
Judge
Dated: May 3, 2021
New York, New York
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