Diamond Sawblades Manufacturers Coalition v. United States , 32 Ct. Int'l Trade 134 ( 2008 )

Slip Op 08 - 18
UNITED STATES COURT OF INTERNATIONAL TRADE
:
DIAMOND SAWBLADES :
MANUFACTURERS COALITION, :
:
Plaintiff, :
:
v. : Before: MUSGRAVE, Senior Judge
: Court No. 06-00247
UNITED STATES, :
: PUBLIC VERSION
Defendant, :
:
and :
:
ST. GOBAIN ABRASIVES, INC., EHWA :
DIAMOND INDUSTRIAL CO., LTD., and :
SHINHAN DIAMOND INDUS. CO., LTD., :
:
Defendant-Intervenors. :
:
[Remanded to the U.S. International Trade Commission for further consideration.]
Dated: February 6, 2008
OPINION AND ORDER
Wiley, Rein & Fielding, LLP (Daniel B. Pickard), for the plaintiff.
James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office
of the General Counsel, U.S. International Trade Commission (Charles A. St. Charles) for the
defendant.
Akin Gump Strauss Hauer & Feld LLP (Jarrod M. Goldfeder and Lisa W. Ross), for the
defendant-intervenors Ehwa Diamond Industrial Co., Ltd. and Shinhan Diamond Industrial Co.,
Ltd.
Thompson Hine LLP (Lynn M. Fischer Fox), for the defendant-intervenor Saint-Gobain
Abrasives, Inc.
Court No. 06-00247 Page 2
Plaintiff Diamond Sawblades’ Manufacturer’s Coalition (“DSMC”) moves for judgment on
the agency record pursuant to USCIT Rule 56.2. The plaintiff challenges a determination by the U.S.
International Trade Commission (“ITC” or “the Commission”) that the domestic industry is not
materially injured or threatened with material injury by reason of the subject imports. See Diamond
Sawblades and Parts Thereof from China and Korea, Investigation Nos. 731-TA-1092 and 1093
(Final), USITC Publication 3862 (July 2006) Pub. R. Doc. 249 (“Final Determination”); see also
71 Fed. Reg. 39128 (July 11, 2006). The plaintiff argues that the ITC’s determination is not
supported by substantial evidence and otherwise not in accordance with law; the ITC opposes the
plaintiff’s motion. Defendant-Intervenors St. Gobain Abrasives, Inc., Ehwa Diamond Industrial Co.,
Ltd., and Shinhan Diamond Indus. Co., Ltd. have joined to urge that the ITC’s determination be
sustained. For the reasons stated below, the court will remand the matter to the Commission for
further proceedings consistent with this opinion.
Background
On May 3, 2005, DSMC filed a petition with the Commission alleging material injury to
domestic producers of diamond sawblades and parts thereof due to imports from the People’s
Republic of China (“China”) and Korea. See Diamond Sawblades and Parts Thereof from China
and Korea, 70 Fed. Reg. 24612 (ITC May 12, 2005) (notice of institution of antidumping duty
investigations and scheduling of preliminary phase investigations). The Commission issued a
preliminary injury determination in August 2005, finding by a 6 to 0 vote that imports from China
and Korea materially injured, or threatened to materially injure, the U.S. diamond sawblade industry.
See Diamond Sawblades and Parts Thereof from China and Korea, Investigation Nos. 731-TA-1092
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and 1093 (Preliminary) USITC Publication 3791 (August 2005) Pub. R. Doc. 96 (“Preliminary
Determination”).
In July 2006, the ITC issued a final determination pursuant to Section 735(b) of the Tariff
Act of 1930, 19 U.S.C. § 1673d(b). The Commission, by a vote of 4 to 2, found that the domestic
industry was not materially injured or threatened with material injury by reason of the cumulated
subject imports from China and Korea. Final Determination at 24. The ITC found that although
subject imports were entering the United States in significant volumes and significantly undersold
the domestic like product, there was “no causal nexus between the subject imports and the condition
of the domestic industry.” Id. at 29, 31, 36. The two dissenting commissioners agreed that the
domestic industry is not currently materially injured by reason of the subject imports from China and
Korea; however, contrary to the majority opinion, the dissent found that the domestic industry was
threatened with material injury by reason of the subject imports. Id. at 41.
Summary of Relevant Findings
Diamond sawblades are circular cutting tools used to cut materials such as cement, marble,
brick, tile, and stone. They typically range in size from 4- 70" in diameter, with sawblades in the 10-
14" category considered to be in the “mid-range” size. ITC Staff Report, Pub. R. Doc. 249 at I-6.
Diamond sawblades have an inner steel core and a diamond-impregnated outer rim or cutting
surface. Depending on the application, the cutting surface can either be segmented or continuous,
and different manufacturing processes (i.e., sintering, soldering, laser welding, braising) are used to
attach the diamond segment to the metal core. Id.
Although the ITC Staff Report indicated that “U.S. producers and importers offer thousands
of different diamond sawblades,” the Commission determined that “diamond sawblades and parts
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thereof” constituted a single domestic like product. Final Determination at 6, ITC Staff Report at
II-5. The Commission also found that there was “a reasonable overlap of competition” among the
subject imports from China and Korea and the domestic like product such that a cumulative
assessment of volume and price effects of the subject imports was appropriate.1 Final Determination
at 20.
The domestic industry lost market share during the Period of Investigation (“POI”) (from
2003 to 2005) in terms of both quantity and value. By value, the domestic industry’s market share
for finished diamond sawblades fell from [ ] % in 2003 to [ ]% in 2005. Manufacturers of
sawblade components also lost market share, but to a lesser extent. Final Determination
(Confidential version) Doc. 549 (List 2) at 26-27. Aggregate operating income of the domestic
industry fell a total of [ ] % during the POI, as did the domestic industry’s aggregate operating
income margins (falling [ ]%) and aggregate return on assets (falling [ ]%). However, the ITC
noted that cashflow increased slightly and that the domestic industry was not prevented from making
significant capital expenditures during the POI. Id. at 37. In the end, the ITC concluded that “even
after these modest declines, the domestic industry has remained highly profitable.” Final
Determination at 35.
Subject imports from China and Korea increased market share during the POI, both in terms
of quantity and value. By value, subject imports’ market share increased from 27.7% in 2003 to
40.0% in 2005; on quantity basis market share was 61.2% in 2003, increasing to 75.1% in 2005. As
1
The Commission noted that although the product differences in diamond sawblades had
“important implications for our assessment of causation,” the general overlap in competition was
sufficient to warrant cumulation. Final Determination at 22.
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to sawblade components, subject imports market share was mixed, gaining for cores, losing for
segments. Id. at 25-27.
Overall demand for finished sawblades and sawblade components increased during the POI.
Id. at 24. By quantity, U.S. consumption of finished sawblades increased from 4.5 million units in
2003 to 6.8 million units in 2005; by value, U.S. consumption of finished sawblades increased from
$187.4 million in 2003 to $214.9 million in 2005. Id. Demand for diamond sawblades is derived
from the demand for construction projects involving the cutting of various aggregates. During the
POI, the Commission noted that there were differences in the trends for consumption of diamond
sawblades by diameter: Consumption of 7-10" diameter sawblades experienced the highest rate of
growth during the POI (30.7%), whereas consumption of midrange (10-14" diameter) blades
increased 18.6%, and large blades (14" diameter and larger) increased by 12.4%. Id.
The Commission found these demand patterns to be relevant in explaining the lack of
competitive overlap between the subject imports and the domestic product. The ITC determined that
the market focus of the subject imports had been the demand for smaller diameter, general use
sawblades, which saw significant growth due to residential and home improvements construction,
whereas the market focus of U.S. producers had been the demand for larger diameter, professional-
use sawblades used in non-residential construction (i.e., road, infrastructure, and office building)
which saw “relatively flat” growth during the POI. Id. at 38.
1. General Market Segmentation: “Professional Use” vs. “General Use”
In finding that the subject imports focused on different market segments than those served
by the domestic industry, the ITC determined that the diamond sawblade industry appeared to be
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segregated into a substantial number of noncompetitive market segments. Broadly speaking,
however, diamond sawblades could be divided into the two categories of “professional use” and
“general use.” ITC Staff Report at I-10. “Professional use” sawblades are (1) sold to end users in the
road and commercial construction industry; (2) largely segmented blades that are greater than 14";
and (3) “typically custom engineered for the industry.” Id. at I-11. “General use” blades however,
are “produced for contractors and [do-it-yourself (“DIY”)] end users.” End users in this category
would include “masons, concrete contractors, hardscape contractors2, plumbing contractors,” and
the like, as well as, presumably, the DIY user who purchases the blade from a “big box” retailer such
as Lowes or Home Depot. The Commission’s staff report did not provide a precise definition of
“general use” sawblades but indicated that such would include “segmented and continuous rim
blades with diameters of 14 inches or less but the range may extend up to 20 inches.” Id. at I-12.
As noted above, the ITC found that sales to the established “professional” market had been
dominated by the domestic industry and sales to the expanding “general use/DIY market” were
dominated by the subject imports. The ITC found that the foreign producers had been unable to
make inroads into the professional use market due to high demand for customer service and highly
customized sawblades in the professional industry. Final Determination at 37. Additional evidence
suggested that the domestic industry was likewise prevented from making inroads into the small-
blade market because they did not produce lower-cost sintered blades. Hearing Transcript (“Tr.”),
Pub. Doc. 179 at 88-89, 242-52. The ITC concluded essentially that, try as they might, neither
foreign not domestic producers had been able to make much of an inroad into the others’ “turf”
2
“Hardscape” commonly refers to the portion of a building’s grounds that consists of
parking lots, patios, retaining walls, or walkways.
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during the POI, and therefore found competition “limited” between subject and domestic diamond
sawblade sales. See Final Determination at 36-38.
However, the Commission ultimately declined to adopt the “professional” vs. “general use”
market segmentation analysis (which was advocated by the Respondents). The Commission noted
that “within the finished diamond sawblade industry, there is no consensus as to which diamond
sawblades categorically serve a particular [“general use” or “professional”] market.” ITC Staff
Report at I-10. Hence, the Commission proceeded to a more detailed (and more measurable) market
segmentation analysis that examined the apparent components used to describe “professional” or
“general use”: blade size, manufacturing process, and channels of distribution/end user.
2. In-Depth Market Segmentation Analysis
a. Market Segmentation Based on Physical Attribute
The Commission determined that diamond sawblades may be categorized by (1) “the physical
attributes of the finished blade” (“blade type”); (2) “the physical attributes of the diamond section”;
and (3) “the method of joining the core to the diamond segments” (“manufacturing process”). Id.
at I-6. “Blade type” refers to whether the blade cutting surface is segmented or continuous, which
may dictate the application for which the blade is used. Id. The attributes of the diamond section
relate to the concentration, quality, and size of the diamonds as well as the bond matrix that attaches
the diamonds to the blade. Id. at I-9. Manufacturing process refers to the process (sintering,
soldering, laser welding, braising) by which the diamond segments are attached to the metal core.
Id. at I-5. Diamond sawblades that have segments laser welded to the core are noted to be stronger,
have fewer failure rates, and are more reliable than sintered sawblades. Id. at I-9.
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The Commission found that differences in blade type and manufacturing process played an
important role in limiting competition because the subject imports were concentrated in blade types
and manufacturing processes not widely produced by the domestic industry. For example, although
the majority of both domestically produced and subject-import sawblades were “laser-welded
segmented product,” a “significant” percentage (31.4%) of Chinese and (27.6%) Korean sales during
the POI consisted of sintered or continuous rim sawblades, which are almost nonexistent in the
domestic industry (less than 1 % of sales). Final Determination at 21. Likewise, the ITC found that
a “significant” percentage (15%) of the domestic industry’s sales consisted of soldered or braised
segmented products, where the subject imports had very little presence. Id.
b. Market Segmentation Based Blade Diameter
The ITC also determined to segment the diamond sawblades market by blade diameter
because different size sawblades are used in different applications and on different types of cutting
equipment. See id. at 28; Confidential Staff Report, Doc. 441(List 2) at II-48–II-50 (indicating that
sawblades of different diameters are generally not interchangeable).
The ITC found attenuated competition in terms of blade diameter, noting that “nearly half”
of U.S. shipments were in sizes 14" and larger, whereas only 7% of the imports from China and 14%
of the imports from Korea were in that size range. Final Determination at 27. The ITC concluded,
“[t]his indicates that, based on size considerations alone, the majority of domestic shipments of
finished U.S. diamond sawblades were in sizes in which the subject imports had a relatively small
presence.” Id. Further, nearly half of subject imports’ U.S. shipment value was for sawblades less
than 10" in diameter (50.2% from China, 44.4% from Korea) while only 6.3% of U.S. product
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shipments were for that size range, so “a very substantial portion of subject imports were shipped
in sizes in which the domestic product’s presence was relatively small.” Id. at 28-29.
c. Market Segmentation Based on Channels of Distribution
The ITC also found segmentation appropriate based on differences in the channels of
distribution. Id. at 25. The Commission’s first compilation of data indicates that the majority of all
U.S., Chinese, and Korean sawblades are sold in the “distributors” channel of distribution. See ITC
Staff Report at Table I-3.
However, the ITC further segmented the “distributors” category into two subcategories:
“branded distributors” and “nonbranded distributors.” The ITC explained that “branded” distributors
purchased/sold diamond sawblades under their own names while “other” distributors sold only
diamond sawblades under suppliers’ names. Final Determination at 22 n.157. In its analysis of
certain purchaser questionnaire responses, the ITC determined that there were differences in the
market focus of these distributors, and concluded that different distributors served different end
users. For example, the Commission found that “branded” distributors sold a wider range of small-
diameter sawblades, a smaller range of large-diameter products, and a broader range of different
sawblade types, to both end users and retailers, and that “other” (i.e., non-branded) distributors were
more likely to buy large-diameter merchandise and sell them only to end-users. Id. at 27-28, n.193.
Producer and importer questionnaire responses also indicated differences with respect to the types
of contractors that purchased sawblades from branded versus other distributors. Id.
The ITC determined that U.S. producer shipments were made primarily to the “other
distributor” (36.1%) and “end user”(including professional construction firms) (46.2%) distribution
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channel(s) and that these two distribution channels predominantly served professional construction
users of diamond sawblades for nonresidential construction activities, e.g., road construction and
infrastructure projects. Id. at 23-24. By contrast, Chinese and Korean sales were directed primarily
to “branded” distributors (47.9% and 44.8% , respectively) and original equipment manufacturers
(18.1% and 27.9%, respectively). Id.
Based on these findings, the ITC concluded that
even when subject imports and U.S.-produced finished diamond sawblades
are sold in similar size ranges, the end users to which the blades are sold
generally differ, with the majority of subject diamond sawblade imports sold
to branded distributors and the majority of the domestically-produced
sawblades sold to other distributors. Accordingly, competition between the
subject imports and the domestic like product is limited, largely by reason of
differences in the mixes of blade diameters and customers.
Final Determination at 27-28 (footnote omitted).
Jurisdiction and Standard of Review
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000). The court will examine
the ITC’s final negative determination in an antidumping duty investigation to determine whether
it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
19 U.S.C. § 1516a(b)(1)(B)(i) (2000).
Under 19 U.S.C. § 1677f(i)(3)(B), the Commission is directed to “include in a final
determination of injury an explanation of the basis for its determination that addresses relevant
arguments that are made by interested parties who are parties to the investigation or review (as the
case may be) concerning volume, price effects, and impact on the industry of imports of the subject
merchandise.” 19 U.S.C. § 1677f(i)(3)(B) (2000). Cf. United States v. Nova Scotia Food Prods.,
568 F.2d 240, 252 (2d Cir. 1977) (holding that “[i]t is not in keeping with the rational [agency]
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process to leave vital questions, raised by comments which are of cogent materiality, completely
unanswered.”).
In its review of ITC’s determination, the Court must consider whether the agency has
“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a
rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted).
For purposes of determining the degree of harm to a domestic industry from dumping,
“material injury” is “harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C.
§ 1677(7)(A) (2000). To make that determination, the ITC is directed to consider the volume, the
effect on prices in the U.S. for domestic like product, and the impact of subject merchandise as well
as other “relevant economic factors . . . and conditions of competition that are distinctive to the
affected industry.” 19 U.S.C. § 1677(7)(C)(iii)(2000).
Discussion
A. Limited Competition Finding
The principal point of controversy with respect to the negative material injury determination
concerns the Commission’s finding of attenuated competition. DSMC’s argues that the findings of
limited competition based on blade size and based on channels of distribution are erroneous and
unsupported by substantial evidence of record. DSMC states that the finding of limited competition
by blade size is contradicted by evidence showing that the domestic industry and the subject
importers both sold the greatest number of sawblades in the 12-14" range. Pl.’s Reply Br. at 4.
DSMC argues further that the Final Determination contains a material misstatement in this regard
because there the ITC stated that the greatest degree of competitive overlap was in the 10-12"
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diameter range, when the data clearly showed that the greatest degree of competitive overlap was
actually in the 12-14" range. Id. DSMC contends that a material error of this nature requires
remand.
As to channels of distribution, Plaintiff contends that the ITC’s findings as to the existence
and importance of “distinct” channels of distribution are inconsistent with the facts of record, and
that both branded and non-branded distributors sold to the same customer base, primarily general
contractors. Pl.’s Br. at 8-10; see Final Determination at 44 (dissent); Confidential Doc. 549 at 46
n.29.
The Commission asserts that it reasonably found that competition was limited during the POI
and that the Final Determination should be affirmed. Def.’s Br. at 1. As to the plaintiff’s material
misstatement argument, the Commission admits that the reference to 10-12" sawblades in the Final
Determination was a misstatement, but contends that it was a harmless drafting mistake. The
Commission notes that the data contained in the Final Determination shows that the greatest
percentage of competitive overlap was in the 12-14" diameter range, and that ITC “obviously”
understood the degrees of overlap within the respective 12-14" and 10-12" diameter categories. Id.
at 17. As to channels of distribution, the ITC responds that it properly segmented those channels and
that the data supported a conclusion of limited competition. Id. at 19-20.
The Commission also notes that DSMC did not discuss the differences in the cutting edges
of the sawblades (whether they are continuous or segmented) and the manner by which the cutting
edges are attached to their core (whether by sintering, laser-welding, soldering or braising). Id. at
21-22. According to the ITC, these product type differences acted to further limit competition
between the subject imports and the domestic products. Id. at 22.
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1. Material Misstatement in ITC’s Finding of Limited Competition
The court cannot agree that the ITC’s misstatement regarding the 10-12" size range was
material to its determination or that remand is required on this ground. “Where a subsidiary finding
is unfounded, the court will remand the case . . . only if the court is in substantial doubt whether the
administrative agency would have made the same ultimate finding with the erroneous finding
removed from the picture.” U.S. Steel Corp. v. United States, 18 CIT 1190,1215, 873 F.Supp. 673,
696 (1994) (quoting Kurzon v. United States Postal Serv., 539 F.2d 788, 796 (1st Cir. 1976)).
Here, substantial evidence of record indicates that the ITC understood that the greatest
competitive overlap was in the 12-14" range of sawblades, not the 10-12" range. See Final
Determination at 27 n.193 (the “size range showing the most overlap between U.S.-produced and
subject imported diamond sawblades” was “size range greater than 12" to 14" diameter”); id. at 22
(noting “overlap among the subject imports and the domestic like product in the 12-inch to 14-inch
diameter range”); see also Confidential Staff Report at Tables I-1 & II-1, E-1–E-3). Further, the
ITC’s competition analysis in terms of blade diameter focused on the lack of competitive overlap
in small-diameter (less than 10") and large-diameter (larger than 14") sawblades; because mid-range
blades would include 12-14" blades, as well as 10-12" blades, such an error would not affect the
Commission’s competition finding. Accordingly, the court finds that ITC’s misstatement was
harmless error.
2. Finding Limited Competition Based on Sawblade Diameter
The court finds that the Commission’s conclusion of attenuated competition based on
sawblade diameter is not supported by substantial evidence of record. The Commission noted
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correctly that (based on value) “nearly half” of the domestic sawblades were sold in sizes 14" and
larger, as compared to only 7% of the subject imports, and that “nearly half of the subject imports”
were blades of 10" or less, a size range that occupied only 6.3% of the domestic industry. However,
this conclusion ignores the fact that the other half of domestic sawblades were sold in midrange (10-
14") sizes, where, coincidentally, “nearly half” of the subject imports are also concentrated. This
point is illustrated in the following table, found in the ITC Staff Report:
ITC Staff Report at I-8. Although the data contained in the above chart does support ITC’s finding
that “nearly half” of the domestic industry shipments were in sawblades of 14" or larger (specifically,
46.9% in 2003, 48.5% in 2004, and 50.6% in 2005) the data also indicate that an almost equal
proportion of the U.S. industry was focused on so-called “midrange” sizes of 10-14" blades
(specifically 46.5% in 2003, 45.1% in 2004, and 43.4% in 2005). As noted above, more subject
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imports were concentrated in the two midrange categories than the two small-blade categories. The
ITC fails to offer an explanation as to how this data reflects attenuated competition based on blade
size.
3. Finding Limited Competition Based on Manufacturing Process
Similarly, ITC’s finding of attenuated competition based on manufacturing process is
unsupported by substantial evidence of record and cannot be sustained. The ITC noted as significant
the fact that “a significant portion of the subject imports are produced using a sintering process to
join component parts, whereas very little sintering is used in the U.S. industry.” Final Determination
at 26. Were the data to show that the subject imports used sintering uniformly accross all blade
sizes, this might show attenuated commpetition; however, this is not the case. In fact, ITC’s data
indicate that the vast majority of sintered blades were confined to smaller diameter sawblades,
where, as noted above, the domestic industry had little presence to begin with. On the other hand,
the data indicate that, in the midrange sawblades where most of the overlap occurred, the vast
majority of the subject imports were not sintered, but laser-welded, just as U.S.-produced blades
were.
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Preliminary Determination at II-3. As the table above indicates, sawblades between 10-14" in
diameter are predominantly laser-welded, regardless of origin. Hence, the finding that sintered
blades typically do not compete with the laser welded variety only underscores the lack of
competition in smaller diameter blades by further differentiating the imported product from that
manufactured by the domestic industry. The ITC offers no explanation as to how its data, which
indicate that foreign and domestic sawblades in the midrange sizes are both laser welded and
segmented, show attenuated competition.
4. Finding Limited Competition Based on Channels of Distribution
The court finds that the Commission has failed to explain adequately its conclusions
regarding differences in channels of distribution. Although the data presented support a conclusion
that (as indicated in the ITC Staff Report, Table I-3) the majority of all U.S., Chinese and Korean
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sawblades are sold through “distributors,” the Commission does not adequately explain its
conclusion that “branded distributors” and “other distributors” served different end users.
Indeed, the ITC Staff Report and the Final Determination contain a paucity of evidence
demonstrating that these distributors actually served different end users. Footnote 193 of the Final
Determination indicates that branded distributors reportedly sold (1) “a larger range of smaller
products” than nonbranded distributors; (2) “a smaller range of larger diameter products” than
nonbranded distributors; and (3) a broader range of sawblade types (laser-welded segmented,
sintered continuous-rim, soldered/brazed, etc.) than nonbranded distributors. Final Determination
at 27, n.193. The Commission noted further that “the branded distributors sold to both end users and
resellers, the latter, in turn, selling to end users, whereas the other distributors reported selling to only
end users.” Finally, the Commission observed that the various suppliers disagreed as to “what
constitutes professional construction end users of sawblades” which suggests “differences in the
types of contractors that the responding . . . distributors refer to as their customers.” Id.
The court is unable to conclude that these observations explain adequately the Commission’s
rationale for finding a meaningful difference between “branded” and “nonbranded” distributors. The
propensity of a distributor to sell “a larger range of smaller products” and fewer large-diameter
sawblades, does not, by itself, offer any insight as to how sales to that distributor attenuates
competition in regard to midrange blades. Likewise, the fact that these distributors sold “a broader
range of sawblades types” is neither surprising nor enlightening; given that it is only the smaller
blades that are almost exclusively of the sintered/continuous rim variety, distributors selling a large
range of smaller products would necessarily end up with more sawblade types. The only data
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presented by the Commission that provide a colorable argument for the notion that these distributors
may have served different customer types is the cryptic observation that distributors disagreed as to
“what constitutes professional construction end users of sawblades” which suggests “differences in
the types of contractors that the responding . . . distributors refer to as their customers.”
Unfortunately, without a substantial amount of development and explanation, this comment confuses
the matter even more: How can the ITC draw a conclusion as to who the “end user” is if the
suppliers themselves are unable to do so? Moreover, the ITC offers no explanation as to why it
supports a finding as to who “distributors refer to as their customers” with a citation to “U.S.
producer and importer questionnaire responses.” Final Determination at 28, n.193 (emphasis
added). Accordingly, the court is unable to conclude that the Commission’s explanation provided
“a rational connection between the facts found and the choice made,” and remand is required. State
Farm, 463 U.S. at 43.
II. Price Effects Finding
A. Failure to Discuss Evidence and Arguments
DSMC asserts that the price effects finding is unsupported by record evidence and otherwise
not in accordance with law because the Commission failed to address material evidence and
arguments presented on the record that show the true extent of competition and price effects. Pl.’s
Br. at 12. Specifically, DSMC points to (1) evidence of “hundreds of pages of catalogues and offers
to sell in the United States” that allegedly demonstrated that Chinese and Korean producers sold
diamond sawblades directly competitive with those produced by the domestic industry; (2) evidence
regarding the closure of two domestic-like-product plants due to import competition; (3) domestic
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producer testimony that subject imports compete head to head against the domestically produced
product and caused significant harm (see Tr. at 165-66 (testimony of Mr. Wolters); see also id. at
20 (testimony of Mr. Garrison); 38-39 (testimony of Ms. O’Day)); and (4) testimony in regard to
customers “switching” to Chinese and Korean products because of price (id. at 140 (testimony of Mr.
Edmond)).
The court is not persuaded that the ITC’s failure to discuss this evidence in the Final
Determination was error. The Commission is not required to make written findings of all the
evidence it considers. Negev Phosphates, Ltd. v. U.S. Dep't of Commerce, 12 CIT 1074, 1083, 699
F. Supp. 938, 947 (1988) (citation omitted). It is well established that “absent some showing to the
contrary, the Commission is presumed to have considered all of the evidence in the record,” and this
is particularly true “where the facts allegedly ignored were presented to the Commission at a[n] open
hearing.” National Ass'n of Mirror Mfrs. v. United States, 12 CIT 771, 779, 696 F.Supp. 642, 648
(1988). Moreover, the plaintiff has failed to present any argument that the evidence to which it
refers is so significant as to “seriously undermine” the ITC’s reasoning and conclusions on the issue.
Cf. Altyx Inc., v. United States, 25 CIT 1100, 1117-18, 167 F.Supp. 2d 1353, 1374 (2001) (holding
that the ITC must address evidence that “seriously undermines its reasoning and conclusions”).
B. Failure to Investigate Lost Sales and Lost Revenue Allegations
Plaintiff contends that the ITC “impermissibly failed to investigate” “millions of dollars of
lost sales and lost revenue allegations” that were submitted during the investigation. Pl.’s Br. at 27-
28. Specifically, the plaintiff asserts that the ITC’s rejection of several affidavits on the ground that
they lacked specificity is not supported in the record and “a product of extremely arbitrary and
capricious decision-making.” Id. at 28. Plaintiff alleges that the information contained in the
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rejected affidavits was “at least as detailed as that provided in other allegations” that the ITC chose
to confirm, and asserts that the Commission “had a duty to at least contact the customer named in
the allegations.” Id. at 31.
The Commission argues that it had “ample reason” for not investigating the lost sales
allegations on the ground that they were incomplete. The Commission notes that, on more than one
occasion, it requested that the plaintiff submit specific information pertaining to “the name of the
customer . . . , the name of the specific product(s) covered by the allegation, the date of sale, the sales
quantity involved, the prices offered by the competing domestic and import suppliers, the final price
of the sale, and the country of origin.” Def.’s Br. at 33-34. In spite of these requests, the plaintiff
never provided the information. Id. at 34.
Under the current posture of this case, the court cannot agree that the Commission’s failure
to investigate the lost sales allegations constitutes a remandable error. This Court has noted on
several occasions, that “[t]he Commission has broad discretion to pursue an investigation in a
manner that will provide substantial evidence to support its determinations,” and that “[t]here is no
minimum standard set by Congress to measure the thoroughness of an investigation by the
Commission.” U.S. Steel Group v. United States, 18 CIT 1190, 1218, 873 F.Supp. 673, 698 (citing
Granges Metallverken, 13 CIT at 481, 716 F.Supp. at 25, and Atlantic Sugar, Ltd. v. United States,
744 F.2d 1556, 1561 (Fed. Cir.1984)).
However, the Commission is not without responsibility to procure relevant evidence of this
nature; there have been instances where the Court has remanded ITC determinations based on a
failure by the agency to investigate less-than-complete allegations of lost sales. See, e.g., USX Corp.
v. United States, 11 CIT 82, 655 F.Supp. 487 (1987). It is important to note, however, that the
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remand in USX Corp. was not premised on ITC’s duty to procure all reasonably available
information. Instead,
[i]t was the Commission’s sole reliance on the absence of confirmed
allegations “in the face of steadily rising import volume and proven
margins of underselling” that rendered the Commission’s
determination unsupported by substantial evidence without further
investigation.
Czestochowa (Stalexport) v. United States, 11 CIT 758, 785-86, 890 F.Supp. 1053, 1075 (1995)
(quoting USX Corp., 11 CIT at 86, 655 F. Supp. at 491). Csestochowa, USX Corp., as well as
Allegheny Ludlum Corp. v. United States, 287 F.3d 1365 (Fed. Cir. 2002) indicate that although the
Commission “has broad discretion” in its pursuit of information for an investigation, the Court will
not uphold a determination that relies solely on the absence of information that the Commission
chose not to pursue. In this matter, the ITC is cautioned that the information contained in the lost
sales allegations may be of greater importance on remand, and that some investigation of the
incomplete allegations may then be appropriate.
C. The ITC’s Price-Effects Analysis
The Commission found that underselling by the subject imports was significant during the
POI, but that it did not have a significant effect on prices for the domestic product. See Final
Determination at 31 (noting that subject imports undersold the domestic product in 301 out of 360
observations by margins of up to 83.65 %). The Commission based this determination on, inter alia:
(1) a finding that, in many cases, domestic prices fell in conjunction with increased volume,
suggesting “price/volume tradeoffs that reflect a broad range of factors unrelated to subject imports”;
(2) the importance of “non-price factors” indicated in questionnaire responses; and (3) data showing
that, in some cases domestic prices increased during the POI or decreased while subject import prices
Court No. 06-00247 Page 22
rose or stayed the same. As stated in the Final Determination, the Commission noted that
[i]n 12 of 17 combinations in which U.S. producers’ prices trended
downward over the period, the downward prices were accompanied
by increased volumes of the U.S. product over the period, suggesting
price/volume tradeoffs unrelated to subject imports, including
competition among domestic producers or demand conditions
affecting only certain end users.
Id. at 31. The Commission then found that, “given the limited competition between the subject
imports and the domestic like product, subject imports have not had a significant role in the limited
price suppression may have occurred.” Id. at 32.
Plaintiff argues that the ITC’s price-trends analysis is unsupported by the substantial record
evidence because the ITC’s data does not contain the necessary information to show either that the
volume increase compensated for the lower prices, or that the declines could be attributed to
competition between domestic producers.
The court agrees to the extent that the ITC’s analysis, without further elaboration, cannot
reasonably be said to support the result reached. In the common understanding of a price/volume
tradeoff, the increased volume of sales must be sufficient to offset the reduced operating profit per
unit. That is, it is rather a price/volume/profit tradeoff.3 However, as the plaintiff correctly points
out, the Commission’s finding of a price/volume tradeoff appears to be devoid of any data indicating
what the operating profit per unit was in each case. In its brief, the ITC contends that “[s]ince the
data do[] indicate . . . that the industry increased its sales volumes for the majority of products on
which it lowered prices, and since increased sales volume is a positive indicator of the industry’s
3
See generally Paul A. Samuelson, William D. Nordhaus, Economics, 137-40 (16th ed.
1998).
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condition, the Commission reasonably found the industry made a ‘price/volume tradeoff’ for these
products.” Def.’s Br. at 31-32. Unfortunately, this explanation ignores completely the question of
whether the volume increase was an adequate “tradeoff” for the lowered prices. Without further
elucidation as to the Commission’s definition of a “price/volume tradeoff,” the court is unable to find
that the ITC has provided a “reasoned explanation” for its finding in this regard. On remand, the
Commission must provide a more thorough explanation for this finding, as well as an explanation
as to how the purported price/volume tradeoffs would indicate competition among domestic
producers.
To the extent that the Commission attributed the falling prices to competition among
domestic producers, the Commission appears to have based this very significant finding upon the
data referenced in a single footnote contained in the report.4 See Final Determination at 31, n.224.
The court cannot find that this single footnote, without further explanation, constitutes either
“substantial evidence of record” or “a reasoned explanation” for the ITC’s determination.
III. Findings as to Volume, Impact, and Threat of Material Injury
Finally, DSMC contends that most of the Commission’s findings must be remanded because
they are based, at least in part, on its erroneous finding of attenuated competition. DSMC contends
that, in light of that error, (1) the volume finding, (2) the price-effects determination, (3) the impact
finding, and (4) the threat analysis all must be remanded because they are based in part upon the
4
Although footnote 224 refers to “differences among quarterly weighted average prices
among certain producers” as support for this assertion, the court notes that the section of the ITC
Staff Report to which the note refers also states that price differences among domestic producers
“may also result from differences in the grade/quality of the sawblades.”
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flawed limited competition finding and are otherwise unsupported by substantial evidence of record.
Pl.’s Br. at 17, 19, 30, 33.
The court agrees with the plaintiff’s assertion in this regard. The Commission appears to
have relied, at least in part, on the attenuated-competition finding for each of the above-referenced
determinations. See Final Determination at 30 (concluding that, given the finding of attenuated
competition, the “significant volume has not had a significant impact on the prices or performance
of the domestic producers.”); id. at 35-36 (noting that “prevailing conditions of competition . . .
indicated that the adverse effects of the subject imports is not significant.”); id. at 36-37 (concluding
that the domestic industry is not vulnerable because of strong demand and “limited overlap in direct
competition” with the subject imports).
Because the Commission’s findings rest, in part, upon “findings of subsidiary fact, or
inferences therefrom” that the court deems unsupportable, the court is in “substantial doubt” whether
the Commission “would have made the same ultimate finding with the erroneous findings removed
from the picture.” U.S. Steel Corp., 18 CIT at1215, 873 F.Supp. at 696. Accordingly, these issues
must be remanded for reconsideration as well.5
5
In light of the further development that may occur on remand, the Commission may revisit
DSMC’s related arguments concerning the existence of competition and threat of material injury.
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Conclusion
This matter is hereby remanded to the ITC for further consideration consistent with this
opinion. The ITC shall file its decision not later than April 4, 2008. Plaintiff will have 15 days from
the filing of the decision to respond. Defendants may reply within 10 days thereafter.
SO ORDERED.
/s/ R. Kenton Musgrave
R. KENTON MUSGRAVE, Senior Judge
Dated: February 6, 2008
New York, New York