Full Member Subgroup of the American Institute of Steel Construction, LLC v. United States

Slip Op. 21-125
UNITED STATES COURT OF INTERNATIONAL TRADE
FULL MEMBER SUBGROUP OF THE
AMERICAN INSTITUTE OF STEEL
CONSTRUCTION, LLC,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
CORNERSTONE BUILDING BRANDS,
INC. ET AL.,
Defendant-Intervenors.
Before: Claire R. Kelly, Judge
Court No. 20-00090
PUBLIC VERSION
OPINION
[Sustaining 	the 	U.S. 	International 	Trade 	Commission’s 	final 	negative 	injury
determination 	in 	its 	antidumping 	and 	countervailing 	duty 	investigations 	of
fabricated structural steel from Canada, the People’s Republic of China, and Mexico.]
Dated: September 22, 2021
Adam M. Teslik and Christopher B. Weld, Wiley Rein LLP, of Washington, DC,
argued for plaintiff Full Member Subgroup of the American Institute of Steel
Construction, LLC. 	Also on the briefs were Alan H. Price, Stephanie M. Bell, and
Enbar Toledano.
John D. Henderson, Attorney-Advisor, Office of the General Counsel, and Andrea C.
Casson, 	Assistant 	General 	Counsel 	for 	Litigation, 	U.S. 	International 	Trade
Commission, of Washington, DC, argued for defendant United States. 	Also on the
brief were Dominic L. Bianchi, General Counsel, and Karl S. von Schriltz, Attorney.
Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, of New
York, NY, argued for defendant-intervenors Jinhuan Construction Group Co., Ltd.,
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Wison (Nantong) Heavy Industry Co., Ltd., Shanghai Matsuo Steel Structure Co.,
Ltd., Yanda (Haimen) Heavy Equipment Manufacturing Co., Ltd., Shanghai Cosco
Kawasaki Heavy Industries Steel Structure Co., Ltd., Modern Heavy Industries
(Taicang) Co., Ltd., Dickerson Enterprises, Inc., and Steel Construction Group, LLC.
Also on the brief were Max F. Schutzman, Jordan C. Kahn, and Eve Q. Wang.
Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld
LLP, of Washington, DC, argued for defendant-intervenor Cornerstone Building
Brands, Inc.
Christopher A. Dunn and Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP,
of Washington, DC, argued for defendant-intervenor BlueScope Buildings North
America Inc.
Richard L.A. Weiner and Rajib Pal, Sidley Austin, LLP, of Washington, DC, for
defendant-intervenors ExxonMobil Chemical Company, a Division of Exxon Mobil
Corporation, and Gulf Coast Growth Ventures, LLC.
Kelly, Judge: 	Before the court is Plaintiff Full Member Subgroup of the
American Institute of Steel Construction, LLC’s (“AISC”, “Petitioner”, or “Plaintiff”)
Rule 56.2 motion for judgment on the agency record challenging various aspects of
the U.S. International Trade Commission’s (the “Commission”) final negative injury
determination in its antidumping and countervailing duty (“ADD” and “CVD”)
investigations of fabricated structural steel (“FSS”) from 	Canada, the People’s
Republic of China (“China”) and Mexico. 1 See [AISC’s] Rule 56.2 Mot. J. Agency R.,
Sept. 21, 2020, ECF No. 52 (“Pl.’s Mot.”); [FSS] From Canada, China, and Mexico, 85
Fed. Reg. 16,129 (Int’l Trade Comm’n Mar. 20, 2020) (deters.); [FSS] from Canada,
1 The countervailing duty investigation concerning fabricated structural steel from
Canada was terminated after the U.S. Department of Commerce determined that
countervailable subsides were not being provided by Canada. Certain [FSS] from
Canada, 85 Fed. Reg. 5387 (Dep’t. Comm. Jan. 30, 2020) (final negative [CVD] deter.).
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China, 	and 	Mexico, 	Investigation 	Nos. 	701-TA-616-617 	and 	731-TA-1432-1434,
USITC Pub. 5031 (Mar. 2020) (Final), ECF No. 39-1 (“USITC Pub. 5031”); see also
Views of Comm’n and Separate and Dissenting Views of Schmidtlein and Karpel
(Confidential Version), Mar. 17, 2020, ECF No. 40-1 (“Final Views”); Final Staff
Report (Confidential Version), Feb. 12, 2020, ECF No. 40-2, revised by, Revisions
Final Staff Report (Confidential Version), Feb. 18, 2020, ECF No. 40-3, and Revisions
Final Staff Report (Confidential Version), Feb. 24, 2020, ECF No. 40-4 (collectively,
“Final Staff Report”). 	For the following reasons, the Commission’s final negative
injury determination is sustained.
BACKGROUND
On February 4, 2019, AISC filed petitions with the Commission and the U.S.
Department 	of Commerce 	(“Commerce”) requesting 	ADD and CVD 	relief from
imports of FSS from Canada, China, and Mexico. 2 	Compl. ¶ 5, May 13, 2020, ECF
No. 9; Petitions Imposition of Antidumping and Countervailing Duties, PD 1, CD 1,
Doc. Nos. 665761, 665760 (Feb. 4, 2019) (“Petitions”). 3 AISC is a “trade association[,]
2 Both Commerce and the Commission must come to affirmative conclusions in their
respective investigations into imports of the subject merchandise before an ADD or
CVD order can be issued. See 19 U.S.C. §§ 1673d(c)(2), 1671d(c)(2) (2018).
3 On June 22, 2020, Defendant submitted indices to the public and confidential
administrative records underlying the Commission’s final determination. 	These
indices are located on the docket at ECF Nos. 39 and 40, respectively. All references
in 	this 	opinion 	to 	documents 	from 	the 	administrative 	record 	underlying 	the
Commission’s final determination are identified by the numbers assigned by the
Commission in those indices and preceded by “PD” and “CD” to denote public or
confidential documents.
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a majority of whose members manufacture, produce, or wholesale the domestic like
product in the United States.” Compl. ¶ 3. The petitions alleged that unfairly traded
imports of certain FSS caused or threatened to cause material injury to the domestic
industry. Compl. ¶ 5; Petitions at 1. On February 4, 2019, the Commission initiated
the preliminary phase of its investigation into the effects of imports of FSS from
Canada, China and Mexico into the United States on the domestic industry. 	See
[FSS] From Canada, China, and Mexico, 84 Fed. Reg. 3245 (Int’l Trade Comm’n Feb.
11, 2019) (institution of [ADD] and [CVD] investigation and scheduling of prelim.
phase investigation). 	The period of investigation (“POI”) covered January 2015
through September 2018. [FSS] from Canada, China, and Mexico, Investigation Nos.
701-TA-615-617 and 731-TA-1432-1434 (Prelim.) at 12, USITC Pub. 4878, (Mar.
2019) (“USITC Pub. 4878”). 	The Commission assessed the effect of subject imports
from Canada, China, and Mexico on the domestic industry on a cumulated basis after
determining that imports from these countries compete with each other and with the
domestic like product. USITC Pub. 4878 at 19–21; see also Final Views at 35–38; 4 19
U.S.C. § 1677(7)(G)(i).
4 Citations to the public version of the Final Views can be found at the corresponding
page of USITC Pub. 5031 (e.g., USITC Pub. 5031 at 35–38 is the corresponding
citation in the public version of the Commission’s Final Views for this citation).
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The Commission defined “a single domestic like product consisting of all in-
scope FSS.” Final Views at 15. Commerce defined the scope in its ADD investigations
as follows:
The merchandise covered by the investigation is carbon and alloy
fabricated structural steel. 	Fabricated structural steel is made from
steel in which: (1) iron predominates, by weight, over each of the other
contained elements; and (2) the carbon content is two percent or less by
weight. 	Fabricated structural steel products are steel products that
have been fabricated for erection or assembly into structures, including,
but not limited to, buildings (commercial, office, institutional, and multi-
family residential); industrial and utility projects; parking decks; arenas
and convention centers; medical facilities; and ports, transportation and
infrastructure facilities. 	Fabricated structural steel is manufactured
from carbon and alloy (including stainless) steel products such as angles,
columns, beams, girders, plates, flange shapes (including manufactured
structural shapes utilizing welded plates as a substitute for rolled wide
flange sections), channels, hollow structural section (HSS) shapes, base
plates, and plate-work components. 	Fabrication includes, but is not
limited to cutting, drilling, welding, joining, bolting, bending, punching,
pressure fitting, molding, grooving, adhesion, beveling, and riveting and
may include items such as fasteners, nuts, bolts, rivets, screws, hinges,
or joints.
The inclusion, attachment, joining, or assembly of non-steel components
with 	fabricated 	structural 	steel 	does 	not 	remove 	the 	fabricated
structural steel from the scope.
Fabricated structural steel is covered by the scope of the investigation
regardless of whether it is painted, varnished, or coated with plastics or
other metallic or non-metallic substances and regardless of whether it
is assembled or partially assembled, such as into modules, modularized
construction units, or sub-assemblies of fabricated structural steel.
Subject merchandise includes fabricated structural steel that has been
assembled or further processed in the subject country or a third country,
including but not limited to painting, varnishing, trimming, cutting,
drilling, welding, joining, bolting, punching, bending, beveling, riveting,
galvanizing, coating, and/or slitting or any other processing that would
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not 	otherwise 	remove 	the 	merchandise 	from 	the 	scope 	of 	the
investigation 	if 	performed 	in 	the 	country 	of 	manufacture 	of 	the
fabricated structural steel.
All 	products 	that 	meet 	the 	written 	physical 	description 	of 	the
merchandise covered by the investigation are within the scope of the
investigation unless specifically excluded or covered by the scope of an
existing antidumping duty order.
Certain [FSS] from Canada, 85 Fed. Reg. 5373, 5375 (Dep’t Com. Jan. 30, 2020) (final
deter. of sales at less than fair value); Certain [FSS] from [China], 85 Fed. Reg. 5376,
5379 (Dep’t Com. Jan. 30, 2020) (final affirmative deter. of sales at less than fair
value); Certain [FSS] from Mexico, 85 Fed. Reg. 5390, 5392–93 (Dep’t Com. Jan. 30,
2020) (final deter. of sales at less than fair value).
Commerce 	defined 	certain 	enumerated 	exclusions 	from 	the 	scope 	of 	its
investigation. 	See, e.g., Certain [FSS] from Mexico, 85 Fed. Reg. at 5393–94.
Relevant to this dispute is the third exclusion:
Pre-engineered metal building systems, which are defined as complete
metal buildings that integrate steel framing, roofing and walls to form
one, 	pre-engineered 	building 	system, 	that 	meet 	Metal 	Building
Manufacturers Association guide specifications. 	Pre-engineered metal
building systems are typically limited in height to no more than 60 feet
or two stories.
Id. at 5393.
On February 12, 2020, the Commission issued its final staff report. 	See
generally Final Staff Report. 5 On February 25, 2020, in a split vote, the Commission
5 Citations to the public version of the Final Staff Report can be found at the
corresponding page of USITC Pub. 5031, beginning at page I-1.
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determined that the domestic industry was not materially injured by imports of
subject FSS. 	See Commission Meeting Transcript, [FSS] from Canada, China, and
Mexico, Investigation Nos. 701-TA-615-617 and 731-TA-1432-1434 (Final), PD 407,
Doc. No. 703488 (Feb. 25, 2020). 	Three Commissioners voted in the negative (“the
Majority”), while two Commissioners voted in the affirmative. Id. at 4. Notice of the
negative determination was published on March 20, 2020. 	[FSS] From Canada,
China, and Mexico, 85 Fed. Reg. 16,129 (Int’l Trade Comm’n Mar. 20, 2020).
This appeal ensued. See Summons, Apr. 17, 2020, ECF No. 1; Compl. Plaintiff
brought the instant motion for judgment on the agency record, the parties briefed the
issues, and the court conducted oral argument on the matter. See [AISC’s] Memo. in
Supp. of [Pl.’s Mot.], Sept. 21, 2020, ECF No. 55 (“Pl.’s Br.”); Def. United States’
Memo. in Opp’n to [Pl.’s Mot.], Dec. 4, 2020, ECF No. 58 (“Def.’s Br.”); Resp. in Opp’n
to [Pl.’s Mot.] of Def.-Intervenors Jinhuan Construction Group Co., Ltd., Wison
(Nantong) Heavy Industry Co., Ltd., Shanghai Matsuo Steel Structure Co., Ltd.,
Yanda 	(Haimen) 	Heavy 	Equipment 	Manufacturing 	Co., 	Ltd., 	Shanghai 	Cosco
Kawasaki Heavy Industries Steel Structure Co., Ltd., Modern Heavy Industries
(Taicang) Co., Ltd., Dickerson Enterprises, Inc., and Steel Construction Group, LLC
(collectively, “GDLSK Respondents”), Dec. 30, 2020, ECF No. 60 (“GDLSK’s Br.”);
Def.-Intervenors Cornerstone Building Brands, Inc. & BlueScope Buildings North
America, Inc.’s Memo. in Opp’n to [Pl.’s Mot.], Dec. 30, 2020, ECF No. 62 (“CBB-
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BlueScope’s Br.”); Reply Br. of [AISC], Jan. 28, 2021, ECF No. 63 (“Pl.’s Reply Br.”);
Oral Arg., May 6, 2021, ECF No. 73.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(i) of the Tariff Act
of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2018), 6 and 28 U.S.C. § 1581(c)
(2018), 	which 	grant 	the 	court 	authority 	to 	review 	actions 	contesting 	a 	final
affirmative injury determination. “The court shall hold unlawful any determination,
finding, or conclusion found . . . to be unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. 	The Commission’s Inclusion of NCI and BlueScope’s Data
Plaintiff asserts that the Commission should have excluded data from NCI
Group, Inc. (“NCI”) and BlueScope Buildings North America, Inc. (“BlueScope”) as
out-of-scope. 	See Pl.’s Br. at 41–46. 	Plaintiff contends that NCI and BlueScope
included data for out-of-scope complete PEMBS and non-FSS components of PEMBS.
See id. Defendant counters that the Commission’s reliance on NCI and BlueScope’s
reported data was reasonable, noting that the Commission confirmed that NCI and
BlueScope only reported data relating to shipments of in-scope domestic like product.
6 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
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See Def.’s Br. at 39–45. 	Defendant-Intervenors Cornerstone Building Brands, Inc.
(“CBB”) 7 and BlueScope argue that NCI and BlueScope did not report data relating
to excluded PEMBS or non-FSS components. See CBB-BlueScope’s Br. at 4–15. For
the following reasons the Commission’s inclusion of data from NCI and BlueScope is
reasonable.
The Commission shall determine whether a domestic industry is materially
injured by reason of subject imports. See 19 U.S.C. § 1671d(1). The domestic industry
consists of “producers as a whole of a domestic like product.” 19 U.S.C. § 1677(4)(A).
The “domestic like product” is “a product which is like, or in the absence of like, most
similar in characteristics and uses with, the article subject to an investigation.” 	Id.
§ 1677(10). The Commission conducts a like product analysis in light of the scope as
determined by Commerce using a variety of factors. 	See, e.g., Nippon Steel Corp. v.
U.S., 19 CIT 450, 454–55 (1995); see Torrington Co. v. United States, 14 CIT 648,
650–52, 651 n.3 (1990), aff’d, 938 F.2d 1278, 1280 (Fed. Cir. 1991); USEC v. United
States, 34 F. App’x 725, 730 (Fed. Cir. 2002). In analyzing the domestic industry and
the domestic like product, the Commission may not act arbitrarily. See Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983). 	The
7 Defendant-Intervenor CBB states that it is “a U.S. producer of fabricated structural
steel and was known as NCI Building Systems, Inc. prior to changing its name in
2019, during the pendency of the Commission’s investigation.” CBB-BlueScope’s Br.
at 1 n.1. According to CBB, it “maintains an operating subsidiary called [NCI], which
completed U.S. producer and U.S. importer questionnaires during the Commission’s
investigation.” Id.
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Commission’s determinations must be supported by substantial evidence. 	See 19
U.S.C. § 1516a(b)(1)(B)(i). 	Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 	Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). 	The possibility of drawing two
inconsistent conclusions from the evidence does not prevent the court from holding
that the Commission’s findings are supported by substantial evidence. 	See Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed. Cir. 2006). 	However, the
Commission must provide an explanation for those conclusions it draws from the
record that reasonably addresses relevant arguments made by interested parties.
19 U.S.C. § 1677f(i)(3)(B); State Farm, 463 U.S. at 48–49.
Here, the Commission defined the domestic like product as coextensive with
Commerce’s scope determination, and included NCI and BlueScope’s data, explaining
that its staff ensured NCI and BlueScope did not report any data that were excluded
from the scope. 	See Final Views at 63 n.304. 	That scope included “steel products
that have been fabricated for erection or assembly into structures” regardless of
whether that FSS was necessary to support design loads. 	Final Scope Decision
Memo. Re: [FSS] from Canada, Mexico, and [China] at 2, 27, PD 353, Doc. No. 702277
(Jan. 23, 2020) (“Final Scope Decision Memo”).
It is reasonably discernible that the Commission concluded that non-load-
bearing FSS components were in-scope, and that data relating to such components
were properly included. Therefore, the Commission’s determination that NCI and
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BlueScope did not include data for out-of-scope merchandise was in accordance with
law and supported by the record. The Commission’s decision to include data relating
to non-load-bearing steel components of PEMBS is in accordance with Commerce’s
scope ruling. 	See Final Scope Decision Memo. at 26–27. 	Commerce explained that
any FSS that is incorporated into a structure, regardless of whether such FSS “is
essential to support the design loads of the structure” is in-scope. 	Id. 	Given
Commerce’s explanation, the Commission reasonably included data from NCI and
BlueScope for such FSS components of PEMBS. 	Plaintiff’s contention that steel
components that are not “structural” in the sense that they are not load bearing
should 	have 	been 	excluded 	contravenes 	Commerce’s 	explanation 	of what 	FSS
encompasses. Thus, Plaintiff’s claim that the Commission’s failure to define “out-of-
scope PEMB[S] components” allowed NCI and BlueScope “to define for themselves
what they considered ‘out-of-scope,’” which resulted in a flawed data set, does not
withstand scrutiny. See Pl.’s Br. at 43; see also Pl.’s Reply Br. at 21.
The 	Commission 	instructed 	NCI 	and 	BlueScope 	to 	exclude 	out-of-scope
merchandise and followed up to “determine what specific components each producer
had included . . . as in[-]scope merchandise.” 	Final Views at 63 n.304. 	The
Commission “reviewed the questionnaire responses . . . closely and examined the data
they submitted in light of what Commerce indicated in its final scope definition was
within or outside the scope.” 	Id. 	After the hearing, the Commission specifically
directed counsel for NCI and BlueScope that “[i]f you produce or import out-of-scope
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PEMB[S] components, do not include such products in either production or imports –
even if assembled into [PEMBS] that you sell.” 	Id. (emphasis in original). 	The
Commission further obtained shipment data from NCI and BlueScope to determine
which specific PEMBS components were included as in-scope merchandise and which
components were excluded as out-of-scope merchandise. 	Id. at 64 n.304. 	The
Commission 	also 	verified 	the 	financial 	data 	submitted 	by 	NCI. 8 	Id. 	The
Commission’s decision to use all the data submitted by NCI and BlueScope was thus
made after a proper review of the record. Given the Commission’s documented efforts
to ensure that the NCI and BlueScope data was in-scope, Plaintiff’s assertion that
the Commission acted arbitrarily is baseless. 	The Commission assured itself that
only in-scope data was included, and its determination is reasonable on this record.
Finally, contrary to Plaintiff’s interpretation of who constructs PEMBS, the
record indicated that the “producers of FSS components of PEMBS” did not construct
the completed PEMBS, rather builders constructed the completed PEMBS. 	Final
Views at 43; see also Pl.’s Br. at 46–47. The Commission concluded that the producers
of FSS did not captively consume the FSS components of PEMBS but merely
aggregated 	them. 	Id. 	As 	discussed 	further 	below, 	the 	record 	supports 	the
8 Plaintiff argues that this verification is irrelevant, as it relates to sales figures that
should not have been included in the first place. 	Pl.’s Br. at 45. 	However, the
Commission staff had also verified that only in-scope merchandise that been reported.
See Verification Report of NCI Group, Inc., [FSS] from Canada, China, and Mexico
Investigation 	Nos. 	701-TA-615-617 	and 	731-TA-1432-1434 	(Final) 	(Confidential
Version) CR 1028 (Feb. 5, 2020).
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Commission’s determination. 	See Revised and Corrected Commission Hearing
Transcript at 204 (Pasley), PD 409, Doc. No. 704509 (Mar. 10, 2020) (“Hearing
Transcript”); see also Post-Hearing Br. BlueScope Buildings North America and
Butler de Mexico at 13, PD 341, CD 1005, Doc. Nos. 701534, 701430 (Feb. 4, 2020)
(“BlueScope’s Post-Hearing Br.”); Final Staff Report at III-22 n.12, Table E-9; Post-
Hearing Br. [CBB] and Building Systems de Mexico, S.A. de C.V., App. A at 16–17,
PD 342, CD 1004, Doc. No. 701540 (Feb. 4, 2020) (“CBB & BSM’s Post-Hearing Br.”).
Thus, the Commission reasonably determined that BlueScope and NCI did not
improperly report data in connection with completed PEMBS.
II. 	Failure to Collect Certain Data
Plaintiff argues that the Commission’s failure to seek out “pricing product
data” 9 or bid data relating to initial offers for projects involving the sale of FSS from
both purchasers and producers (or fabricators) for the final phase of its investigation
was unlawful and led to an inadequate record. See Pl.’s Br. at 21–26, 39 (citing, inter
alia, Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1373 (Fed. Cir. 2002)).
Defendant contends that Plaintiff’s challenge is essentially an objection to the
reasonableness of the Majority’s analysis, and that the Commission’s collection of
data in this case was appropriate and reasonable. 	Def.’s Br. at 25–30. 	For the
9 The parties use the phrase “pricing product data” to describe “quarterly data for the
total quantity and f.o.b. value of . . . fabricated structural steel products shipped to
unrelated U.S. customers”. See USITC Pub. 4878 at V-8.
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following reasons the Commission’s methodological choices were reasonable and in
accordance with law.
The Commission shall determine whether a domestic industry is materially
injured (or threatened with material injury) by reason of subject imports. 	See 19
U.S.C. § 1671d(b)(1). 	“Material injury” means “harm which is not inconsequential,
immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A). In each case, the Commission
shall consider:
(I) the volume of imports of the subject merchandise,
(II) the effect of imports of that merchandise on prices in the United
States for domestic like products, and
(III) 	the 	impact 	of 	imports 	of 	such 	merchandise 	on 	domestic
producers of domestic like products, but only in the context of
production operations within the United States[.]
Id. § 1677(7)(B)(i)(I)–(III). 	The Commission may also “consider such other economic
factors as are relevant to the determination regarding whether there is material
injury by reason of imports.” Id. § 1677(7)(B)(ii). As long as the Commission considers
all three mandatory factors, its “methodology and procedures are reasonable means
of effectuating the statutory 	purpose, 	and 	there 	is 	substantial 	evidence 	in 	the
record 	supporting 	the agency’s conclusions, 	the 	court 	will 	not impose its own
views as to the sufficiency 	of the agency’s investigation or question the agency’s
methodology.” 	Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 404–05
(1986) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843
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(1984)); see also Angus Chem. Co. v. United States, 140 F.3d 1478, 1485 (Fed. Cir.
1998).
The Commission reasonably declined Petitioner’s request to solicit additional
pricing product data or bid data for the final phase of its investigation. Although FSS
is primarily sold through a bidding process, the Commission initially requested
pricing product data from U.S. producers and importers regarding the effects of
subject imports from Canada, China, and Mexico on FSS sales in the United States.
See USITC Pub. 4878 at V-8. 10 The Commission also requested that U.S. producers
report instances of lost sales or revenue resulting from FSS imports from Canada,
China, and Mexico (“lost sales and revenue survey”), see id. at V-13, which it
10 The Commission requested pricing product data based on six categories proposed
by AISC in its petitions:
Product 1.—Fabricated light structural, Grade 50, 0ဨ19 lbs. per linear
foot, sold for industrial projects.
Product 2.—Fabricated medium structural, Grade 50, 20ဨ119 lbs. per
linear foot, sold for industrial projects.
Product 3.—Fabricated extra heavy structural, Grade 50, 120 lbs. or
greater per linear foot, sold for industrial projects.
Product 4.—Fabricated structural steel sold for schools, libraries, labs,
and hospitals, 2ဨ4 stories.
Product 5.—Fabricated structural steel sold for office buildings, multiဨ
family residential buildings, and mixedဨuse buildings, 5ဨ19 stories.
Product 6.—Fabricated structural steel sold for office buildings, multi-
family residential buildings, and mixedဨuse buildings, 20 stories and
greater.
Id.
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considered alongside other sources such as official import statistics from Commerce
and publicly available index data on FSS prices. 	See id. at 4–5, V-7. 	However, the
Commission encountered difficulties with the pricing product data it collected for the
preliminary phase, and “request[ed] that the parties in their comments on the draft
questionnaires suggest the best way for the Commission to collect comparable pricing
data for the domestic like product and the subject imports.” Id. at 31. On August 5,
2019, 	the 	Commission 	circulated 	to 	the 	parties 	a 	draft 	of 	its 	final 	phase
questionnaires, and Petitioner made several suggestions.11 See Draft Questionnaires
and accompanying Letter, PDs 97–98, Doc. Nos. 684283, 6842844 (Aug. 5, 2019). The
Commission implemented some, but not all, of the suggestions offered during the
preliminary phase as to how to conduct its investigation. See, e.g., Def.’s Br. at 26–
11 First, Petitioner maintained that the Commission should continue collecting
pricing 	product 	data 	and 	proposed 	an 	additional 	product 	category 	calling 	for
“quarterly price data for all [FSS] sold by [the respondent’s] firm.” See Pet’r’s Draft
Questionnaire Cmts. at 8–9, PD 116, CD 314, Doc. Nos. 687192, 687029 (Sept. 3,
2019). Additional time to conduct the final phase, Petitioner argued, would mitigate
many of the difficulties experienced by the Commission in collecting usable pricing
product data during the preliminary phase. Id. at 6–7. According to Petitioner, even
if the collected pricing product data suffered limitations, it would still be useful to
complement or corroborate the bid data. Id. at 8. Second, in addition to requesting
data from U.S. purchasers of FSS, Petitioner urged the Commission to expand its
questionnaire to include bid data from U.S. and foreign producers of FSS. Id. at 10–
11. Petitioner explained that fabricators/producers of FSS would be better positioned
to itemize total bid prices in such a way as to enable the Commission to isolate the
FSS component of final bids. 	Id. 	Third, Petitioner requested that the Commission
seek data on initial bid amounts for sales of FSS. Id. at 11. Petitioner submitted that
implementing its request would allow the Commission to conduct a representative
comparison of FSS prices that reflects any price changes that occurred between
rounds of bidding in response to subject imports. See id. at 10–11.
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27 (citing Pet’r’s Cmts. on Draft Questionnaires, PD 116, CD 314, Doc. Nos. 687192,
687029 (Sept. 3, 2019) (“Pet’r’s Draft Questionnaire Cmts.”), Final Questionnaires,
PD 154 (Oct. 4, 2019)).
Although the Plaintiff argues that the Commission ignored its suggestions,
Pl.’s Br. at 21–22, the Commission reasonably determined that requesting additional
pricing product data would not lead to probative evidence. See Final Views at 52–53.
The Commission noted irregularities with the data and difficulties it encountered
when soliciting responses from U.S. producers during the preliminary phase. See id.
at 52–53, 53 n.256. The Commission explained that Petitioner’s suggestion to collect
pricing product data for the same six categories, plus an additional seventh category
consisting of all FSS, did little to address the problems the Commission encountered
in the preliminary phase of the investigations. See id. at 52–53, 53 nn.254, 256. The
Commission’s preliminary request for pricing product data produced responses that
all parties that address this issue acknowledge were flawed and of limited probative
value. 	See Pl.’s Br. at 21–23; Def.’s Br. at 30–31; GDLSK’s Br. at 14–15. The
Commission’s determination that further requests for the same data would be
unhelpful is reasonable. It may be, as Petitioner speculated in its comments, that the
inclusion of one additional product pricing category in the Commission’s final phase
questionnaire and more time to conduct the final phase of the investigation would
have mitigated difficulties the Commission encountered during the preliminary
phase. Pet’r’s Draft Questionnaire Cmts. at 8–9. However, an alternative reasonable
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approach does not render the Commission’s determination unreasonable. See Nippon
Steel Corp., 458 F.3d at 1352.
The Commission also requested bid data from purchasers, but not from
producers or fabricators, and limited its request to bid data relating to final offers.
See 	Final Questionnaire at 28–30. 	The Commission observed 	that Petitioner
“acknowledged in the petitions that the customized nature of FSS and the bid process
imposed limitations on the usefulness of both pricing product data and bid data for
FSS,” and that “[t]he petitions specifically cited a previous investigation in which the
Commission had explained that its ‘conventional {pricing product} approach to
pricing’ was ‘not useful’ in that investigation given the custom nature of the products
and the bidding process through which they were sold.” 	Final Views at 53 n.256
(citing Petitions at 27); see also Large Power Transformers from Korea Investigation
No. 731ဨTAဨ1189 (Prelim.) at 16, USITC Pub. 4256 (Sept. 2011) (“USITC Pub. 4256”).
It is reasonably discernible, based on the Commission’s reference to Large Power
Transformers from Korea, that past investigations dealing with subject merchandise
that are custom-made for specific projects and sold through a bidding process
informed the Commission’s decision to limit its request to final bid data from U.S.
purchasers. 12 See Final Views at 53 n.256.
12 For example, in Large Power Transformers from Korea, the Commission requested
(footnote continued)
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Plaintiff’s assertions that the Commission should have requested initial bid
data and that the Commission should have broadened its requests to include bid data
from fabricators, fail for similar reasons. See Pl.’s Br. at 21–22, 38–39. As discussed,
it is reasonably discernible that the Commission preferred to request bid data from
purchasers because requests for bid data from fabricators or producers would result
in comparability issues. 	See Final Views at 53 n.256; see also, e.g., Engineered
Process Gas Turbo-Compressor Systems from Japan, Investigation No. 731-TA-748
(Final) at V-4 n.16, USITC Pub. 3042 (Jun. 1997) (“Since bid prices presented by
individual suppliers may differ in their scope, information from contractors/end users
is more reliable in terms of comparing bids from different suppliers, since it is more
likely that all bids presented will cover an equivalent scope.”). 13
bid data from producers and fabricators, but found that the information submitted
was not sufficient to permit identification of instances where U.S. produced subject
merchandise compete with subject imports for the same sales. USITC Pub. 4256 at
16. 	Indeed, Defendant points out, and Plaintiff does not dispute, that in the three
most recent investigations cited by Plaintiff, the Commission limited its examination
to final bid data from purchasers. 	See Def.’s Br. at 29 (citing Utility Scale Wind
Towers from China and Vietnam, Investigation Nos. 701-TA-486 and 731-TA-1195-
1196 (Final) at 22, USITC Pub. 4372 (Feb. 2013); 100- to 150- Seat Large Civil
Aircraft from Canada, Investigation Nos. 701-TA-578 and 731-TA-1368 (Final) at V-
10, USITC Pub. 4759 (Feb. 2018); Large Diameter Welded Pipe from China and India,
Investigation Nos. 701-TA-593-594 and 731-TA-1402 and 1404 (Final) at 43, USITC
Pub. 4859 (Jan. 2019)).
13 Plaintiff invokes Allegheny for the proposition that the Commission has an
obligation to seek out more information than it did in this case. Pl.’s Reply Br. at 4–
5. 	In Allegheny, the U.S. Court of Appeals for the Federal Circuit held that the
Commission must seek out all relevant information before resorting to the “product
(footnote continued)
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III. 	The Commission’s Refusal to Apply Captive Production Provisions
The Commission’s determination not to apply the captive production provision
of the statute, see 19 U.S.C. § 1677(7)(C)(iv), is reasonable and supported by
substantial 	evidence. 	The 	Commission 	determined 	that 	aggregation 	of 	FSS
components 	with 	non-FSS 	components 	into 	PEMBS 	“kits” 	does 	not 	constitute
“production of a downstream article” within the meaning of the statute. 	See Final
Views at 43; 	see also 19 U.S.C. § 1677(7)(C)(iv). 	Plaintiff argues that the relevant
downstream article is a complete PEMBS, which Plaintiff asserts is indistinguishable
from a PEMBS kit. See Pl.’s Br. at 46. Plaintiff further argues that the PEMBS kits
themselves 	are 	downstream 	articles. 	Id. 	at 	48–49. 	Defendant 	asserts 	the
Commission’s determination not to apply the captive production provision was
reasonable because builders, not FSS producers, produce PEMBS, so FSS is not
internally transferred for the production of a downstream article. 	Def.’s Br. at 46–
47. Defendant further argues that it was reasonable for the Commission to determine
that aggregation of PEMBS components without any assembly was “not tantamount
to a downstream article ‘produced’ from an in-scope article.” Id. at 46 (quoting Final
Views at 43 n.188). NCI and BlueScope contend that the Commission’s determination
not 	to 	apply 	the 	captive 	production 	provision 	was 	reasonable 	and 	that 	the
line provision” of the statute, see Allegheny 287 F.3d at 1372, but the parties do not
argue that the product line provision is applicable in this instance. 	See 19 U.S.C.
§ 1677(4)(D). Therefore, Alleghany is not applicable.
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Commission’s interpretation of the statute is entitled to deference. CBB-BlueScope’s
Br. at 17–19. 	For the following reasons, the Commission’s decision not to apply the
captive production provision is reasonable and supported by substantial evidence.
For the captive production provision to apply, the threshold condition that
domestic producers internally transfer domestic like product for the production of a
downstream article and sell a significant production of the domestic like product in
the 	merchant 	market 	must be 	met. 14 	If the 	threshold 	condition 	is 	met, the
Commission will consider whether the downstream article enters the merchant
market and whether the domestic like product is the predominant material input in
14 Captive production is defined by the statute as follows,
If domestic producers internally transfer significant production of the
domestic like product for the production of a downstream article and sell
significant production of the domestic like product in the merchant
market, and the commission finds that—
(I) the domestic like product produced that is internally transferred
for processing into that downstream article does not enter the
merchant market for the domestic like product, and
(II) the domestic like product is the predominant material input in
the production of that downstream article,
then the Commission, in determining market share and the factors
affecting financial performance set forth in clause (iii), shall focus
primarily on the merchant market for the domestic like product.
19 U.S.C. § 1677(7)(C)(iv). Sales in the “merchant market” refers to sales to unrelated
customers. 	See Uruguay Round Agreements Act, Statement of Administrative
Action, H.R. Doc. No. 103–316, vol. 1, at 852 (1994), reprinted in 1994 U.S.C.C.A.N.
4040, 4185 (“SAA”).
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production 	of the 	downstream 	article. 	19 	U.S.C. § 	1677(7)(C)(iv). 	The 	term
“internally transfer[red] . . . for the production of a downstream article” is further
defined by Congress to mean “processed into a higher-valued downstream article by
the 	same 	producer.” 	See 	Uruguay 	Round 	Agreements 	Act: 	Statement 	of
Administrative 	Action, 	H. 	Doc. 	103–316, 	at 	852 	(1994), 	reprinted 	in 	1994
U.S.C.C.A.N. 4040, 4185 (“SAA”); see also 19 U.S.C. § 1677(7)(C)(iv). 15
Neither the statute nor the SAA further define “production of a downstream
article,” or “processing into a distinct downstream article.” 16 	If the statute is
ambiguous, the court defers to the Commission’s interpretation as long as that
interpretation is permissible under the statute. 17 See Chevron, 467 U.S. at 843. The
15 The SAA “shall be regarded as an authoritative expression by the United States
concerning the interpretation and application of the Uruguay Round Agreements and
this Act in any judicial proceeding in which a question arises concerning such
interpretation or application.” 19 U.S.C. § 3512(d).
16 Plaintiff argues that the Commission did not discuss processing in its Final Views,
see Pl.’s Reply Br. at 23, but it is reasonably discernible from the Commission’s
reliance on the SAA’s explanation of the threshold condition that the term “for the
production of a downstream article” necessarily encompassed the SAA’s elucidation
of that term to mean “processing into a downstream article.” See Final Views at 42–
43; SAA at 852.
17 “Production” is defined by the Oxford English Dictionary as, “The action of making
or manufacturing from components or raw materials, or the process of being so
manufactured.” 	https://www.lexico.com/en/definition/production (last visited Sept.
16, 2021). 	Likewise, the Oxford English Dictionary defines “produce” as, “Make or
manufacture 	from 	components 	or 	raw 	materials.”
https://www.lexico.com/definition/produce (last visited Sept. 16, 2021). 	“Make” is
defined as “Form (something) by putting parts together or combining substances;
(footnote continued)
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common meanings of these words do not compel any specific interpretation of the
terms “production of a downstream article,” or “processing into a distinct downstream
article”; therefore, the Commission’s construction will be upheld as long as it is
permissible. See id.
Here, the Commission found that the threshold condition of the statute was
not met because aggregation of FSS and non-FSS components of PEMBS did not
constitute production of a downstream article and that unrelated builders, not FSS
producers, produced the downstream article PEMBS. 	Final Views at 43. 	The
Commission further found that PEMBS themselves, not the aggregated components,
were the downstream articles produced from the in-scope FSS. 	See id. at 43 n.188
(“Aggregation of components, without any assembly by the domestic producer, is not
tantamount to a downstream product ‘produced’ from in-scope articles”). 	The
Commission’s determination that PEMBS kits are not downstream articles that are
produced using domestic like product was a reasonable interpretation of the statute.
No party contends that FSS used in the construction of PEMBS is changed via large-
scale assembly with machines or subjected to “a series of mechanical or chemical
operations . . . to change it” after it is initially manufactured, but before it is used by
create,” and “manufacture” is defined as “Make (something) on a large scale using
machinery.” See https://www.lexico.com/definition/make (last visited Sept. 16, 2021);
https://www.lexico.com/definition/manufacture (last visited Sept. 16, 2021). Finally,
the Oxford English Dictionary defines “process” as, “Perform a series of mechanical
or chemical operations on (something) in order to change or preserve it.” 	See
https://www.lexico.com/definition/process (last visited Sept. 16, 2021).
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builders 	in 	the 	construction 	of 	PEMBS. 	See
https://www.lexico.com/definition/manufacture 	(last 	visited 	Sept. 	16, 	2021);
https://www.lexico.com/definition/process (last visited Sept. 16, 2021). 	The parties
agree that after FSS for use in PEMBS is manufactured, it is either aggregated with
other PEMBS components and shipped to job sites or else shipped directly to job sites
without being aggregated. 18 See Pl.’s Br. at 46; Def.’s Br. at 47; CBB-BlueScope’s Br.
at 21–22.
Plaintiff does not contend that the threshold condition is unambiguous or that
the Commission’s construction of the threshold condition is contrary to the clear
intent of Congress. 	See Pl.’s Reply Br. at 23–24. 	Rather, Plaintiff asserts that the
Commission’s 	brief 	sets 	forth 	a 	post-hoc 	rationalization 	of 	the 	Commission’s
determination that was not set forth in the Final Views. 	Id. at 23. 	Specifically,
Plaintiff argues that the Commission’s determination focuses only on whether
PEMBS kits are a downstream article, not that FSS is further processed to produce
a downstream article. Id. at 23. Plaintiff misinterprets the Commission’s analysis of
the threshold condition. The Commission interpreted the statute as requiring that a
“downstream article” be “further processed” in order to be produced. See Final Views
18 Plaintiff asserts that FSS is [[
]]; however, it is reasonably discernible that the Commission determined
that [[ 	]] is not equivalent to “production” or
“processing.” 	See Reply Br. of [AISC] (Revised Confidential Version), at 24, Feb. 1,
2021, ECF No. 65; Final Views at 43.
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at 42–43, 43 n.188. Because PEMBS kits were aggregated and not processed, PEMBS
kits did not constitute a downstream article that was produced from in-scope FSS
under the statute. Id. at 43. Plaintiff’s argument that the Commission acted contrary
to law because the legislative history does not support the Commission’s position fails
to persuade. See Pl.’s Br. at 46–48. 	Indeed, the legislative history quoted by the
Plaintiff refers to whether a distinct article is “produced from that product.” 	Id. at
47–48 (quoting Final Views at 43 n.188 and SAA at 852). It is reasonably discernable
that the Commission concluded that producing one product from another requires
more than aggregation. The Commission’s interpretation is reasonable.
Moreover, 	the 	Commission’s 	determination 	is 	supported 	by 	substantial
evidence. Plaintiff argues that the distinction between a PEMBS kit and a complete
PEMBS is “arbitrary [and] unsupported by the record.” Pl.’s Br. at 46. However, the
distinction is made not by the Commission but by Commerce in the Final Scope
Determination, in which Commerce states, “[p]re-engineered metal building systems,
which are defined as complete metal buildings that integrate steel framing, roofing
and walls to form one, pre-engineered building system, that meet Metal Building
Manufacturers Association guide specifications” are “excluded from the scope of these
investigations.” Final Scope Decision Memo at 3. BlueScope asserts that it does not
consume the FSS in the manufacture of a downstream product. Hearing Transcript
at 204 (Pasley); see also U.S. Producers’ Questionnaire [Revised] Resp. of [BlueScope]
at IV-7, CD 547, Doc. No. 694313 (Nov. 8, 2019). BlueScope explains that it “produces
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FSS, which it ships, usually in stages, to the building site. 	There, the FSS is
ultimately assembled by the builder into a completed building.” 	Id.; see also
BlueScope’s Post-Hearing Br. at 13 (“BlueScope does not captively consume its
production of PEMBS components”). BlueScope further testified that it ships FSS to
the site, where the builder assembles the FSS and other materials into a complete
building. Id.; see also Final Staff Report at III-22 n.12, Table E-9. Likewise, record
evidence from CBB and Building Systems de Mexico S.A. de C.V. (“BSM”) supports
the Commission’s findings that NCI and BlueScope did not internally transfer FSS
for further processing into a downstream article. 	See CBB & BSM’s Post-Hearing
Br., 	Appx. 	A 	at 	16–17. 	Thus, 	there 	is 	substantial 	evidence 	to 	support 	the
Commission’s determination that U.S. producers do not captively consume FSS for
the production of downstream articles, but rather that they produce FSS which is
then used by unrelated parties to produce the downstream PEMBS. See Final Views
at 43.
Contrary to Plaintiff’s suggestion, the Commission’s interpretation of what
constitutes a complete PEMBS is not “absurd.” See Pl.’s Reply Br. at 25. 	The
Commission determined that, “in nearly all instances, it is not the producers of FSS
components of PEMBS that produce a finished PEMBS; rather it is the builders that
construct a complete PEMB[S] from the various components in the kit, or by
combining the in-scope components it purchases from the producer with other
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materials that it purchases separately.” 19 	Final Views at 43. 	Plaintiff argues that
there is no difference between a completed building and the parts used in its
construction, see Pl.’s Br. at 46, however, it was not unreasonable for the Commission
to 	find 	that 	completed 	PEMBS 	(i.e. 	buildings) are 	distinguishable 	from 	their
component parts, regardless of whether those components are aggregated and sold
together as a kit. Indeed, Plaintiff appears to have understood this distinction in its
briefing at the agency level. See Pet’r’s Prehearing Br. at 22, PD 309, CD 953, 960,
Doc. No. 699961, (Jan. 21, 2020) (“While complete PEMBS have their own standards
that apply to the finished building, the structural components are required to comply
with AISC standards, similar to all in-scope FSS.”).
Finally, 	after 	determining 	that 	the 	captive 	production 	provision 	was
inapplicable, the Commission was not obligated to consider captive production a
pertinent condition of competition. The Commission explained, “given the nature of
the ‘internal transfer’ involved, we do not find that captive consumption, as we
normally consider that term, is a pertinent condition of competition.” Final Views at
43 n.189. 	It is reasonably discernible from the Final Views that the “nature of the
internal transfer” referred to in note 189 means that the only actions FSS producers
19 Despite Plaintiff’s contention, see Pl.’s Br. at 47, the fact that “beginner-level
workshops” are offered, does not mean that “anyone” can construct a PEMBS. Teams
of professional builders construct PEMBS, which are one- and two-story buildings,
shopping centers, warehouses, arenas, motels, and office complexes. See Final Views
at 16, 18.
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take following production of the FSS is to (sometimes) aggregate the FSS with non-
FSS components and then ship the FSS to a job site. 	See id. at 42–43. 	Thus, the
“internal transfer” is unlike the vertical integration that Congress describes in the
SAA. See SAA at 852. Here, there is no vertical integration and the U.S. producers
do not internally transfer the FSS “for further internal processing.” SAA at 852; see
Final Views at 43. 	In 	these 	circumstances, 	it was not unreasonable for the
Commission to find that captive consumption was not a pertinent condition of
competition. 	The Commission’s determinations with respect to captive production
and consumption are sustained.
IV. 	Commission’s Material Injury Determination
A. 	Underselling
In 	evaluating 	the 	price 	effects 	of 	subject 	imports 	under 	19 	U.S.C.
§ 1677(7)(B)(i)(II), the Commission shall consider whether—
(I) there 	has 	been 	significant 	price 	underselling 	by 	the 	imported
merchandise as compared with the price of domestic like products of
the United States . . .
19 U.S.C. § 1677(7)(C)(ii)(I). 	In so doing, the Commission “may consider such other
economic factors as are relevant to the determination regarding whether there is
material injury by reason of imports,” id. § 1677(7)(B)(ii), and shall examine any such
“relevant economic factors described [in id. § 1677(7)(C)] within the context of the
business cycle and conditions of competition that are distinctive to the affected
industry.” Id. § 1677(7)(C).
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The Commission’s determination that it lacked substantial evidence that
cumulated subject imports undersold the domestic like product is reasonable in light
of the record as a whole. 	The Commission considered total bid data from U.S.
purchasers, Final Views at 53–55, itemized bid data, id. at 58, average unit value
(“AUV”) data with detailed breakouts, see id. at 58, and data derived from responses
to its lost sales and revenue survey. Id. at 58–59. 	The Commission also considered
pricing data examined in the preliminary phase, but determined that because of the
inaccuracies in that data, the data did not “provide a sufficient basis to make findings
about the relative price levels.” Id. at 53.
First, the Commission relies on total bid data from U.S. purchasers, which it
reasonably concludes does not demonstrate the existence of significant underselling
during the POI. 	Id. at 53–55. 	Most of the bid data was not itemized in such a way
as to enable the Commission to specifically identify a separate cost-component
attributable to FSS. See id. at 49, 55–57. In light of conflicting evidence presented
by the parties as to what cost-share of a typical project is attributable to the value of
FSS, 20 it is not unreasonable for the Commission to conclude that the data does not
20 Plaintiff contends that the Commission incorrectly stated that AISC publications
put the cost share of FSS was “’between 25% and 75%, depending on the scope of the
project.’” Pl.’s Br. at 8–9 (citing Final Staff Report at II-11–II-12). Instead, Petitioner
argued the correct cost share was 75%. 	Pl.’s Br. at 9. 	The Commission however
considered the record evidence cited by the Plaintiff supporting Plaintiff’s view of the
cost share of FSS, but nonetheless after weighing the evidence decided that the cost
share of FSS could vary greatly and did “not necessarily constitute a majority or fixed
proportion of the total bid.” See Final Views at 56–58.
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reliably permit a factual finding that cumulative subject imports had adverse price
effects on domestic producers. See id. at 55–57. 	It is reasonably discernible that the
Commission reasonably decided not to rely on non-itemized bid data because it could
not determine what portion of the bid data were for FSS and what portion were for
services such as erection services. See id. at 55–58. It is reasonably discernible that
the Commission reasonably concluded that bids where the main component of cost
was something other than FSS would be less probative of whether imports of FSS
were having an adverse price effect on domestic producers. 	See id. at 55–58. Thus,
it stands to reason that the Commission assigns less weight to the data not itemized
and the record does not establish a typical range for FSS cost-share.
Moreover, the Commission examined the bid data to determine to what extent
the lowest bid prevailed. Id. at 54–55. Comparing bid data for which there was a bid
involving at least one domestic supplier and one supplier from Canada, China, or
Mexico, the Commission collected usable bid data from 14 purchasers for 40 different
projects. 	Id. at 53. 	Although 18 of 19 bids won by subject imports were lower total
bids, in a number of cases the higher bid won the project. 21 Id. at 54. Plaintiff asserts
21 The Commission found that a higher total bid was successful over a lower bid in 16
instances. 	See Final Views 54–55 nn.264–66. 	Plaintiff complains that the analysis
of these 16 projects “inexplicably veered away from comparing domestic and subject
prices, and into comparing domestic prices with other domestic prices, and subject
prices with other subject prices.” 	Pl.’s Br. at 19. 	Plaintiff challenges the lack of
(footnote continued)
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that the Commission’s methodology and analysis improperly imposes a universal
lowest price requirement to find underselling. 22 	Pl.’s Br. at 18–19. 	However, the
Commission reasonably explains that the fact that the lowest priced bid did not
always win was “one limitation to use of the total bid data.” Final Views at 55. Record
evidence supports the Commission’s determination that factors other than price
informed purchasing decisions. 	Id. at 48 n.217. 	The Commission observes that the
lowest bid does not prevail in many instances, and it is reasonable for the Commission
to infer, particularly in light of corroborating responses to its questionnaire, that such
conditions of competition further limit the probative value of the bid data. See id. at
54–55 nn.261–66.
Further, the Commission reasonably found that lost sales data did not support
a finding of significant underselling. 	The Commission concluded that the lost sales
accounted for a small volume during the POI and did not correlate to the loss of
explanation as to why the Commission did not limit itself to comparing domestic to
subject bids. 	Id. at 19–20. 	However, the Commission states “we find that the
domestic like product and cumulated subject imports have a moderateဨtoဨhigh degree
of substitutability, and that price is one of several important factors in purchasing
decisions for FSS.” 	Final Views at 52. 	It is reasonably discernible from this
statement that the Commission sought to assess the importance of price in the
industry as a whole. 	Further, Plaintiff argues that the lowest bid did win in most
instances when bids awarded to a single fabricator competing with at least one other
bid. 	Pl.’s Br. at 20. 	Nonetheless, by proposing another way to look at the evidence
the Plaintiff is asking the court to reweigh the evidence.
22 The Commission did not impose a universal lowest price requirement, rather it
took account of the factors including price which influenced purchasers in order to
assess the probative value of the bid data. See Final Views at 55.
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market share. 	See id. at 59. 	The Commission noted that domestic producers’
shipments increased by more than the total lost sales volume during the POI. 	Id.
Although Plaintiff queries why the Commission’s comparison of lost sales volume to
the increase in domestic shipments is relevant to the Commission’s analysis, Pl.’s Br.
at 27, it is reasonably discernible that the Commission made its comparison to
provide context. 	See Final Views at 59. 	The Commission must determine whether
there is significant underselling, an inquiry that is necessarily done on a case-by-case
basis. See 19 U.S.C. § 1677(7)(C)(ii)(I). 	The degree of lost sales as compared to the
market is therefore not irrelevant and is part of the evidence that the Commission
weighs. 	It is not the court’s role to reweigh that evidence. The Commission further
explained that the lost sales did not correspond to a loss in market share to importers,
and in fact the domestic industry’s market share increased during the POI. 	Id.
Further, the Commission found that the data contained substantial ambiguities with
respect to lost sales. Id. at 59 n.289. The Commission drew that inference from the
fact that the bid data did not itemize FSS cost. Id. at 55, 59. So even where lost sales
and revenue responses indicate that price is the primary reason for purchasing a
product, the Commission could not attribute that to the price of FSS. Id. at 59. Thus,
the Commission’s determination that the lost sales data does not support a finding of
underselling is supported by substantial evidence.
The Commission also reasonably found that the detailed AUV data were not
probative of underselling. Although the Petitioner argued that lower AUVs for U.S.
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shipments of subject imports evidence that the subject imports 	undersold the
domestic like product, Posthearing Brief of Pet., Fabricated Structural Steel from
Canada, China, and Mexico, Investigation Nos. 701-TA-614-617 and 731-TA-1432-
1434 (Final) at 9, PD 344 CD 1001, 1012 (Feb. 4, 2020), the Commission concluded
that the nature of FSS production was project specific and therefore differences in
AUVs would not necessarily “reflect differences in FSS prices between subject
imports and the domestic like product.” Final Views at 58. The court cannot say that
the Commission’s determination, given the evidence, is unreasonable. 	The project
specific uses of FSS may result in significantly different costs for different projects.23
Averaging values masks significant differences in costs. Thus, it is not unreasonable
for the Commission to find AUVs not probative of underselling.
Finally, the Commission reasonably believed the problems with the pricing
product data would not be adequately addressed by the inclusion of an additional
pricing product category or additional time to conduct the investigation. See id. at 53.
Most of the firms the Commission requested pricing product data from did not provide
usable responses. USITC Publ. 4878 at V-8–9 n.40. The Commission observed that
many of the firms experienced difficulty completing the questionnaire responses, and
23 The Commission found that over 99 percent of the commercial shipments by U.S.
producers and importers were produced-to-order. 	Final Views at 72. 	Plaintiff’s
arguments concerning the breadth of the AUV data, Pl.s’ Br. at 30, ask this court to
reweigh the evidence already considered by the Commission. See Final Views at 58
n.280.
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further noted irregularities and apparent inaccuracies in the data the firms did
report. 	See Confidential Views of the Commission (Prelim.) at 49 CD 312, Doc. No.
671868 (Apr. 1, 2019) (“Prelim. Views”). Therefore, the Commission’s decision not to
assign weight to this data is reasonable.
B. 	Price Suppression & Depression
In evaluating the price effects of subject imports, the Commission shall also
consider 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.” 19 U.S.C. § 1677(7)(C)(ii)(II). 	In so doing, the
Commission “may consider such other economic factors as are relevant to the
determination regarding whether there is material injury by reason of imports,” id. §
1677(7)(B)(ii), and shall examine any such “relevant economic factors described [in
19 U.S.C. § 1677(7)(C)] within the context of the business cycle and conditions of
competition that are distinctive to the affected industry.” Id. § 1677(7)(C).
The Commission reasonably explains that the record does not support a finding
that cumulated subject imports depressed prices. Final Views at 60–62. Although it
assigns limited probative value to the AUV data for the purposes of establishing
underselling, 	the 	Commission 	explains 	that 	the 	AUV data 	showed 	trends 	“of
increasing domestic prices during the POI.” 	Id. at 60 (citing Final Staff Report at
Table C-4). The Commission corroborates its finding by pointing out that only three
of 33 responding purchasers indicated that they reduced prices to compete with
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subject 	imports. 	Id. 	at 	60 	n.292. 	Plaintiff 	challenges 	the 	Commission’s
representation of the record, see Pl.’s Br. at 37–38, because 22 of those responding
purchasers indicated that they do not know whether they reduced prices. 	See Final
Staff Report at V-23. 	However, Plaintiff’s challenge only serves to further support
the Commission’s view that the record lacks evidence to demonstrate injury. Plaintiff
does not direct the court to any evidence that would contradict or impugn the
Commission’s reasoning. 24 Id.
Likewise, the Commission’s finding that prices were not suppressed to a
significant degree is reasonable. 	The Commission acknowledges record evidence
showing an increase in industry-wide cost of goods sold (“COGS”) to net sales ratio
between 	2016 	and 	2018, 25 	but 	reasonably 	concludes 	that 	the 	increase 	is 	not
significant in view of an extremely fragmented industry 	comprised of “over a
thousand fabricators that have considerable variation in their operations.” 	Final
Views at 60 n.294 (citing, inter alia, USITC Pub. 4878 at 25). 	The Commission
supports its conclusion with company-specific financial data from ten of the largest
U.S. producers in 2018 showing “tremendous variability across firms in their COGS
to net sales ratios, the trends in those ratios, unit raw material costs, and the trends
24 Plaintiff argues the inadequate record creates the evidentiary deficiency. Pl.’s Br.
at 38–40 However, as explained above, the suggestions for additional data collection
offered by Petitioner did little to address data problems. 	See Final Views at 52–53
nn.254, 256.
25 The increase was [[ 	]] percentage points. Final Views at 60 n.294.
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in those costs.” Id. (citing Final Staff Report at Table G-1); see also Final Staff Report
at G-5. The Commission also finds “that revenues increased by more than its COGS
on both an overall and perဨunit basis”, Final Views at 61 (citing Final Staff Report at
Table C-4), and that the industry was able to “substantially increase its prices during
this period by more than the increase in raw material costs” between 2016–2018. Id.
(citing Final Staff Report at Table VI-3, Table C-4). 	Contrary to Plaintiff’s attempt
to qualify variations among the top producers as being inconsequential, see Pl.’s Br.
at 36, which really is a request for the court to reweigh the evidence, the financial
data, taken together with its other factual findings, support the Commission’s
conclusion that the increase in industry-wide COGS to net sales ratio between 2016
and 2018 does not reasonably demonstrate the existence of price suppression during
the POI.
C. 	Impact
With respect to its examination of the impact of subject imports under 19
U.S.C. § 1677(7)(B)(i)(III), the Commission shall
evaluate all relevant economic factors which have a bearing on the state
of the industry in the United States, including, but not limited to—
(I) actual and potential decline in output, sales, market share,
gross profits, operating profits, net profits, ability to service debt,
productivity, 	return 	on 	investments, 	return 	on 	assets, 	and
utilization of capacity,
(II) factors affecting domestic prices,
(III) 	actual 	and 	potential 	negative 	effects 	on 	cash 	flow,
inventories, employment, wages, growth, ability to raise capital,
and investment,
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(IV) 	actual 	and 	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, and
(V) in a proceeding under subtitle B [19 USCS §§ 1673–1673h],
the magnitude of the margin of dumping.
Id. § 1677(7)(C)(iii). 	No particular factor is dispositive, and all relevant factors
“within the context of the business cycle and conditions of competition that are
distinctive to the affected industry” must be considered. Id.
The 	Commission’s 	determination 	that 	subject 	imports 	did 	not 	have 	a
significant 	impact 	on 	the 	domestic 	industry 	is 	reasonable 	and 	supported 	by
substantial evidence. 	The Commission found “substantial increases between 2016
and 2018 in capacity, production, capacity utilization, net sales quantity, U.S.
shipments, market share, productivity, revenues, gross profit, operating income, and
net income, and capital expenditures.” Final Views at 63. The Commission further
explained that the domestic industry’s capacity supported its determination. 26 Final
26 The Commission found that the domestic industry’s capacity increased by [[ 	]]
percent between 2016 and 2018.” 	Final Views. at 64. 	Likewise, capacity rose from
[[ 	]] percent in 2016 to [[ 	]] percent in 2018. Id. “Net sales increased by [[ 	]]
percent from 2016 to 2018 . . . [and] U.S. shipments increased by [[ 	]] percent from
2016 to 2018.” 	Id. 	Moreover, “The domestic industry’s share of apparent U.S.
consumption increased from [[ 	]] percent in 2016 to [[ 	]] percent in 2017 and
[[ 	]] percent in 2018; it was [[ 	]] percent in interim 2018 and lower, at [[ 	]]
percent in interim 2019.” 	Id. at 65. 	The Commission also noted that the domestic
industry’s “[r]evenues rose by [[ 	]] percent from 2016 to 2018 . . . [and] [g]ross
profit rose by [[ 	]] percent from 2016 to 2018.” Id. Operating income also rose by
[[ 	]] percent from 2016 to 2018, and net income rose by [[ 	]] percent over the
same period. Id. at 65–66.
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Views at 63–64. Given these and other positive changes to domestic industry during
the POI, see generally id. at 63–66, 27 the Commission’s determination that the
domestic industry was not significantly impacted by subject imports was supported
by substantial evidence. 28 See id. at 67.
Plaintiff contends that the Commission did not sufficiently analyze the broader
market conditions, specifically in the context of what Plaintiff calls the “natural
experiment” of the different markets for domestic producers of FSS for PEMBS and
domestic producers of FSS not for PEMBS. 	Pl.’s Br. at 51. 	However, contrary to
Plaintiff’s contention, the Commission did discuss the broader market conditions. See
Final Views at 66. 	The Commission analyzed the above performance indicators in
the context of an increase in apparent U.S. consumption, 29 and found that many of
those indicators significantly outpaced the increased consumption. 	Id. at 66. 	The
Commission also found no evidence to support Plaintiff’s argument that the domestic
industry should have performed even better than it did but for the subject imports.
Id. at 66–67, 67 n.323. Instead, the Commission cited record evidence demonstrating
that after the volume of subject imports fell in response to Section 301 tariffs imposed
27 Other positive changes include increased ending inventories, increased share of
U.S. consumption, and increased wages paid to domestic workers. Id.
28 Plaintiff also claims that the Commission failed to adequately address post-petition
effects. Pl.’s Br. at 52–53. 	The Commission addressed the post-petition effects. 	See
Final Views at 51. 	Plaintiff’s disagreement with the Commission’s determination
does not make the Commission’s consideration of post-petition effects inadequate.
29 The increase was an 5.9 percent increase. Id. at 66.
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on imports from China, the domestic industry was unable to improve its performance
and its market share decreased in interim 2019. Id. at 51 n.248. 30
Moreover, the Commission was under no obligation to analyze different parts
of the domestic industry in isolation. See e.g., CP Kelco US, Inc. v. United States, 38
CIT __, 24 F. Supp. 3d 1337, 1346–47 (2014) (holding that the Commission’s statutory
authority gave it discretion on how to analyze industry data). 	The Commission
adopted Petitioner’s argument that the domestic industry was singular; therefore,
the Commission was not required to analyze the impact of subject imports on
different segments of the domestic industry. Id.; Final Views at 13, 15. Plaintiff fails
to explain how the performance of one segment of the domestic industry undermines
the Commission’s finding that the industry as a whole was not materially injured.
30 The Commission reasonably concluded that the decrease in subject imports from
China during the POI was caused solely by the imposition of Section 301 tariffs. See
id. at 51 n.248. 	Petitioner contends that although the petitions were not filed until
February 2019, [[ 	]]
and Respondents knew of the petitions by December 2018, and that knowledge was
at least a partial cause of the decreased volume of subject imports. 	[AISC’s] Memo.
in Supp. of [Pl.’s Mot.] (Revised Confidential Version), Sept. 21, 2020, ECF No. 54 at
52–53; see also Final Views at 51, 51 n.248. However, the Commission found subject
imports increased from April 2018 through August 2018, and then dropped by over
50% from August 2018 to September 2018 following the announcement of the
imposition of Section 301 tariffs. Final Views. at 51 n.248; Final Staff Report at IV-
20, Table IV-7. 	Subject import volumes decreased further in late 2018 and then
remained consistently below August 2018 levels through interim 2019. Id. Moreover,
it was only imports from China that decreased; imports from Canada and Mexico,
which were not subject to Section 301 tariffs but were the subject of the petitions, of
which Plaintiff contends [[ 	]] did not similarly decrease.
Id. These facts support the Commission’s conclusion that the Section 301 tariffs, not
the petitions, were the cause of the decrease in volume.
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Contrary to Plaintiff’s argument, having reasonably determined that underselling
was not present, the Commission was not obligated to find that the larger percentage
of imported merchandise in the non-PEMBS segment of the market caused the
relatively worse performance of that segment during the POI. See Pl.’s Reply Br. at
27–28.
Furthermore, the Commission explains that when subject imports decreased
in interim 2019, the domestic industry was unable to increase its market share,
undermining Plaintiff’s argument that the domestic industry should have performed
better than it did as a result of the larger percentage of imported merchandise in the
non-PEMBS segment of the market. 	Final Views at 66–67. 	Even taking Plaintiff’s
arguments at face value, that domestic producers of FSS not for use in PEMBS
demonstrated weaker performance than other segments of the industry during the
POI does not take away from the substantial evidence supporting the Commission’s
conclusion that the industry as a whole improved its performance and was not
significantly impacted by subject imports, as discussed above.
Plaintiff’s concerns regarding certain economic indicators that fell during the
POI asks the court to reweigh the evidence that the Commission already considered. 31
31 	Plaintiff 	asserts 	that 	the 	domestic 	industry 	“was 	unable 	to 	maintain 	its
profitability,” and “should have been able to increase prices significantly” due to
prevailing economic conditions. Pl.’s Br. at 50 (quoting Final Views at 79). Plaintiff
also asserts that unit operating income fell, operating margins decreased, and the
number of domestic producers operating at a loss increased during the POI in the
non-PEMBS segment of the industry. Id. at 51.
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See Pl.’s Br. at 50–51; Final Views at 63–67. 	The court recognizes that reasonable
minds might come to different conclusions regarding the impact of the subject imports
on domestic industry given the conflicting evidence, but that is not enough to remand
the 	Commission’s 	determination. 	The 	Commission’s 	impact 	determination 	is
sustained.
CONCLUSION
For the reasons stated the Commission’s determination that an industry in the
United States is not materially injured by reason of subject imports of FSS from
Canada, China, and Mexico that are sold in the U.S. at less than fair value and
subsidized by the governments of China and Mexico is sustained. 	Judgment shall
enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	September 22, 2021
New York, New York
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