Commission and Defendant-Intervenors argue that the Commissions
findings were consistent. The Commission argues that in both the cumulation and injury determinations the Commission found attenuated
competition between the subject imports and the domestic like product.
However, the statutory standards used for cumulation and injury determinations
differ and it is consistent to find that the level of product fungibility
and competition may satisfy the reasonable overlap standard
of cumulation yet still be insufficient to support a finding that the
subject imports caused material injury to the domestic industry. See
Def.s Br. at 13-18. The Commission asserts that substantial
evidence on the record supports a finding that competition between subject
imports and the domestic like product was attenuated due
to differences in quality and product mix. Additionally, the Commission
argues that its findings took into account all record evidence, which
included the characteristics of the subject imports from India and all
record evidence that was contrary to a finding of attenuated
competition. See Id. at 17-18. In response to the Committees
claim that the estimated dumping margins were not considered in the Final Determination, the Commission claims [t]he Commission
need not discuss every statutory factor or party argument. Rather, it
must address the most relevant factors and arguments such that the agencys
path can reasonably be discerned. Id. at 3. Therefore,
the Committees argument that the Commission did not take into
account dumping margins determined by Commerce misapprehends the
Commissions obligations in explaining the basis for its determinations. Id.
STANDARD OF REVIEW
Committee asks the court to hold that the Commissions Final
Determination is unlawful. The court must evaluate whether the finding
in question is supported by substantial evidence on the record or is
otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B).
Substantial evidence is [m]ore than a mere scintilla; it
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Consolidated Edison Co. of New
York v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co.,
Ltd. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). This
court noted, [i]n applying this standard, the court affirms [the
agency's] factual determinations so long as they are reasonable and
supported by the record as a whole, even if there is some evidence that
detracts from the agencys conclusions. Olympia Indus.,
Inc. v. United States, 22 CIT 387, 389, 7 F. Supp.2d 997, 1000 (1998)
(citing Atlantic Sugar, Ltd. v. United States, 744 F. 2d 1556,
1563 (Fed. Cir. 1984).
court may not reweigh the evidence or substitute its own judgment for
that of the agency. See Granges Metallverken AB v. United States,
13 CIT 471, 474, 716 F. Supp. 17, 21 (1989). Substantial evidence is
"something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent
an administrative agency's finding from being supported by substantial
evidence." Id., 13 CIT at 475, 716 F. Supp. at 21 (citations
omitted). Additionally, absent a showing to the contrary, the agency
is presumed to have considered all of the evidence in the record. Nat'l
Ass'n of Mirror Mfrs. v. United States, 12 CIT 771, 779, 696 F.
Supp. 642, 648 (1988). Thus, "to prevail under the substantial
evidence standard, a plaintiff must show either that the Commission
has made errors of law or that the Commission's factual findings are
not supported by substantial evidence." Id., at 774, 696
F. Supp. at 644.
The Commissions material injury and threat of material injury
analysis was in accordance with law and supported by substantial
determine if the steel wire rope industry was materially injured by
reason of the subject imports, the Commission had to first define the
industry and the domestic like product.3 Additionally, the Commission was required by 19 U.S.C. § 1677(7)(G)(i)
(1994) to cumulatively assess the volume and price effects of imports
from all countries with respect to which petitions were filed and/or investigations self-initiated by Commerce on the same day, if such imports compete
with each other and the domestic like product. In assessing whether
to cumulate, the Commission applied the four-factor test it developed
to determine if a reasonable overlap of competition existed
between the subject imports and the domestic like product.4 See Final Determination at 10. In the final phase of the antidumping investigation,
the ITC was required to consider the volume of the subject imports,
their effect on prices for the domestic like product and other economic
factors that are relevant to its determining whether the steel wire
rope industry in the United States was materially injured or threatened
with material injury from the subject imports. See 19 U.S.C. §
1677(7)(B)(i) (1994); 19 U.S.C. § 1677 (7)(C)(iii) (1994).
determining to cumulate, the Commission analyzed the subject imports
from China and India in relation to each other and the domestic like
product and found that there was a reasonable overlap of
competition. However, the Commission noted that
record is . . . mixed regarding whether there is reasonable overlap
of competition among the domestic like product and the subject imports
from China and India. The subject imports and the domestic like product
are sold through overlapping channels of distribution, and were present
throughout the period of investigation,
and in all geographic areas of the United States. Fungibility among
the products is limited by the lower quality of subject imports from
China and, to a lesser extent, subject imports from India. The subject
imports higher concentration in galvanized carbon steel wire
rope also limits fungibility. Nevertheless, producers, importers,
and purchasers generally indicated that the subject product from China
and India and the domestic like product are all at least sometimes
interchangeable, and are often used in the same applications.
Determination at 20. To support its conclusion, the Commission detailed
the conditions of competition in the United States market and cited
this information in its determination. See Final Determination at 19-20 n. 79-84 (citing to Part II of the Confidential Staff Report
Steel Wire Rope From China and India, Inv. Nos 731-TA- 868-869 (Final)
(March 9, 2001), Administrative Record, List 2, Doc. 169 (Staff
Report). The Commission analyzed the channels of distribution,
supply and demand considerations, substitutability issues, and the supply
and demand elasticity in the United States market. Id. Although
the Commission did find that there was reasonable overlap
of competition which statutorily required that the subject imports from
China and India be cumulated, the Commission recognized that competition
between the domestic like product and the subject imports was attenuated
due to quality and product mix issues. See Determination at 16.
This finding became particularly relevant for the Commissions
injury analysis in the final phase of the investigation.
the injury determination analysis, the Commission is required to consider
(1) the volume of the imports, (2) their effect on prices for the domestic
product, (3) their impact on domestic producers of the domestic like
product, but only in the context of production operations within the
United States, and (4) other economic factors that are relevant to the
injury determination.5 In this case, the
Commission determined that the domestic industry was not materially
injured by reason of the subject imports sold in the United States at
less than fair value.
Commission, in evaluating the volume of imports, found that the increase
in volume of imports from China and India did not adversely affect the
United States producers market share. It did, however, find that
the market shares for nonsubject imports were negatively impacted by
the increased volume of subject imports.
record also indicates that subject imports accounted for [ ] percent
of U.S. apparent consumption in interim 1999, and [ ] percent in interim
2000. The U.S. producers share, however, remained [ ] during
the same period, at [ ] percent in interim 1999, and [ ] percent in
interim 2000. The increase in share by the subject imports between
interim 1999 and interim 2000 therefore came at the expense of nonsubject
imports. That subject imports displaced nonsubject imports is consistent
with record evidence that galvanized carbon steel wire rope made up
more than one-half of subject imports, and almost half of nonsubject
imports, but only a small share of domestic production.
Determination at 25-26 (footnotes omitted).
19 U.S.C. § 1677(4)(A) states: [t]he term industry
means the producers as a [w]hole of a domestic like product, or those
producers whose collective output of a domestic like product constitutes
a major proportion of the total domestic production of the product.
U.S.C. §1677(10) states: [t]he term domestic like product
means a product which is like, or in the absence of like, most similar
in characteristics and uses with, the article subject to an investigation under this subtitle.
Commissions definitions of the industry and domestic like product
are not in dispute, therefore, the court need not focus on that portion
of the Commissions determination.
The four factors considered are:
degree of fungibility between the subject imports from different
countries and between imports and the domestic like product, including
consideration of specific customer requirements and other quality
presence of sales or offers to sell in the same geographic markets
of subject imports from different countries and the domestic like
existence of common or similar channels of distribution for subject
imports from different countries and the domestic like product;
subject imports are simultaneously present in the market.
Determination at 15 (citing Certain Cast-Iron Pipe Fittings from
Brazil, the Republic of Korea, and Taiwan, Inv. Nos. 731-TA-278-280
(Final), USITC Pub. 1845 (May 1986), affd Fundicao Tupy, S.A.
v. United States, 12 CIT 231, 678 F. Supp. 898, affd 859 F.2d 915 (Fed. Cir. 1988)).
19 U.S.C. § 1677(7)(B) (1994) provides:
Volume and consequent impact
making determinations under sections 1671b(a), 1671d(b), 1673b(a), and
1673d(b) of this title, the Commission, in each case--
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; and
may consider such other economic factors as are relevant to the determination
regarding whether there is material injury by reason of imports.
the notification required under section 1671d(d) or 1673d(d) of this
title, as the case may be, the Commission shall explain its analysis
of each factor considered under clause (i), and identify each factor
considered under clause (ii) and explain in full its relevance to the