|
|
| |
|
 Articles |
Legal News |
Thailand Lawyer |
Links |
Home |
The Commission and Defendant-Intervenors argue that the Commission’s 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 Committee’s 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 agency’s path can reasonably be discerned.” Id. at 3. Therefore, the Committee’s argument that the Commission did not take into account dumping margins determined by Commerce “misapprehends the Commission’s obligations in explaining the basis for its determinations.” Id.
III. STANDARD OF REVIEW
The Committee asks the court to hold that the Commission’s 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 agency’s 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).
The 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.
IV. DISCUSSION
To 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).
In 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
[t]he 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.
Final 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 Commission’s injury analysis in the final phase of the investigation.
In 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.
The 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.
The 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.
Final Determination at 25-26 (footnotes omitted).
3. 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.”
19 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.”
The Commission’s definitions of the industry and domestic like product are not in dispute, therefore, the court need not focus on that portion of the Commission’s determination.
4. The four factors considered are:
(1) (2) (3) (4) whether the subject imports are simultaneously present in the market. Final 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), aff’d Fundicao Tupy, S.A. v. United States, 12 CIT 231, 678 F. Supp. 898, aff’d 859 F.2d 915 (Fed. Cir. 1988)).
5. 19 U.S.C. § 1677(7)(B) (1994) provides:
(B) Volume and consequent impact
In making determinations under sections 1671b(a), 1671d(b), 1673b(a), and 1673d(b) of this title, the Commission, in each case--
(i) 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; and(ii) may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports.
In 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 determination.