International Imaging Materials, Inc. v. United States International Trade Commission , 30 Ct. Int'l Trade 1181 ( 2006 )

Slip Op. 06-11
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
INTERNATIONAL IMAGING :
MATERIALS, INC. :
:
Plaintiff, :
:
V. : Before: Richard K. Eaton, Judge
:
: Court No. 04-00215
UNITED STATES INTERNATIONAL : Public Version
TRADE COMMISSION, :
:
:
Defendant. :
:
______________________________:
OPINION AND ORDER
[United States International Trade Commission’s final negative
determination on wax and wax/resin thermal transfer ribbons
remanded]
Dated: January 23, 2006
Steptoe & Johnson, LLP (Richard O. Cunningham, Tina Potuto
Kimble, and Thomas J. Trendl), for plaintiff.
James M. Lyons, General Counsel, United States International
Trade Commission; Neal J. Reynolds, Acting Assistant General
Counsel, United States International Trade Commission (Andrea C.
Casson), for defendant.
Wiley Rein & Fielding LLP (Alan H. Price and Daniel B.
Pickard), for defendant-intervenors Armor U.S.A. and Armor, S.A.
Paul, Hastings, Janofsky & Walker LLP (Hamilton Loeb and
Alexander W. Koff), for defendant-intervenors DNP IMS America
Corp. and Dai Nippon Printing Co., Ltd.
Court No. 04-00215 Page 2
Eaton, Judge: This matter is before the court following the
motion of plaintiff International Imaging Materials, Inc.
(“IIMAK”) for judgment upon the agency record pursuant to USCIT
Rule 56.2. By its motion, IIMAK contests the final negative
determinations of the U.S. International Trade Commission (“ITC”
or “Commission”) in the antidumping duty investigations
concerning certain wax and wax/resin thermal transfer ribbons
(“TTR”) from France and Japan. See Certain Wax and Wax/Resin
Thermal Transfer Ribbons From France and Japan Determinations, 69
Fed. Reg. 20,949 (Apr. 19, 2004) (“Final Determination”). In
its Final Determination, the ITC found that the domestic industry
was not injured or threatened with injury by reason of subject
imports.
The court has jurisdiction over this matter pursuant to 28
U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(B)(iii)
(2000). For the reasons set forth below, this matter is remanded
to the ITC for action in accordance with this opinion.
BACKGROUND
TTRs are ink-covered strips of film used in barcode printers
and fax machines. See Certain Wax and Wax/Resin Thermal Transfer
Ribbons from France and Japan, Inv. Nos. 731-TA-1039-1040
(Final), Confidential Views of the Commission (April 2004), Conf.
Court No. 04-00215 Page 3
R. Doc. 314 (“ITC Views”). The first two steps in producing TTR,
ink-making and coating, are done exclusively by “coaters” that
possess the machinery and equipment necessary to perform that
work. Id. at 3. These steps yield “jumbo rolls.” The jumbo
rolls are put through two additional production steps, slitting
and packaging, by “slitters” before being sold on the open
market. Id. The additionally-processed product produced by the
slitters is known as finished TTR. Id. at 3 n.5. Finished TTR
falls into two categories: fax TTR, also known as “finished fax
TTR” or “slit-fax TTR” and non-fax TTR, also known as “barcode
TTR.” There are few U.S. sales of imported jumbo rolls because
wholly-owned subsidiaries of foreign-based coaters (i.e., U.S.-
based slitters) largely consume the rolls themselves to produce
finished fax TTR and barcode TTR. Id. at 30.1
STANDARD OF REVIEW
The court will 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). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
1
The ITC “refer[s] to TTR that is slit and packaged as
‘finished TTR’ but note[s] that parties often used the terms
‘slit’ or ‘slitted’ synonymously with ‘finished.’” ITC Views at 3
n.5.
Court No. 04-00215 Page 4
to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938) (citations omitted). It “requires ‘more than a
mere scintilla,’ but is satisfied by ‘something less than the
weight of the evidence.’” Altx, Inc. v. United States, 370 F.3d
1108, 1116 (Fed. Cir. 2004) (quoting Atl. Sugar, Ltd. v. United
States, 744 F.2d 1556, 1562 (Fed. Cir. 1984); Matsushita Elec.
Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)).
The existence of substantial evidence is determined “by
considering the record as a whole, including evidence that . . .
‘fairly detracts from the substantiality of the evidence.’”
Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369,
1374 (Fed. Cir. 2003) (quoting Atl. Sugar, 744 F.2d at 1562). In
conducting its review, the court’s function is not to reweigh the
evidence but rather to ascertain “whether there was evidence
which could reasonably lead to the Commission’s
conclusion . . . .” Matsushita, 750 F.2d at 933. The
possibility of drawing two inconsistent conclusions from the
record evidence does not, in itself, prevent the ITC’s
determinations from being supported by substantial evidence.
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) (citations
omitted); Altx, 370 F.3d at 1116.
Court No. 04-00215 Page 5
DISCUSSION
Plaintiff makes two primary arguments as to why the ITC’s
Final Determination is flawed. First it claims that the
Commission erred in its definition of the domestic like product
and second, that in its volume and price effects analysis, the
ITC should have looked beyond the limited competition for jumbo
rolls to downstream competition for finished TTR.
I. Domestic Like Product — The ITC’s Use of Its Six-Factor
Analysis
In order to determine whether a domestic industry is
materially injured or threatened with material injury, the ITC
must define the domestic like product. See 19 U.S.C. § 1677(10).
While Commerce determines the scope of its less than fair value
investigation, the ITC is responsible for identifying “the
corresponding universe of items produced in the United States
that are like[,] or in the absence of like, most similar in
characteristics and uses with the items in the scope of the
investigation.” Def.’s Mem. in Opp’n to Pl.’s Mot. J. Agency R.
(“Def.’s Mem.”) at 15; see also 19 U.S.C. § 1677(10). After the
ITC has determined what constitutes the domestic like product, it
must next examine “the volume of imports, their effect on prices
for the domestic like product, and their impact on domestic
producers of the domestic like product . . . .” ITC Views at 27;
see also 19 U.S.C. § 1677(7)(B)(i)(I)-(III). All of these
Court No. 04-00215 Page 6
factors are considered “within the context of the business cycle
and conditions of competition that are distinctive to the
affected industry.” 19 U.S.C. § 1677(7)(C)(iii).
The ITC defines domestic like product by determining whether
there are “clear dividing lines” between any of the domestically-
produced items that would warrant finding more than one item to
be part of the definition or excluding an item from the
definition. NEC Corp. v. Dep’t of Commerce, 22 CIT 1108, 1110,
36 F. Supp. 2d 380, 383 (1998). That is, if the ITC concludes
that there are no clear dividing lines between any of the
domestically produced items, it then includes them as part of the
domestic like product. “The Commission’s decision regarding the
appropriate domestic like product is a factual determination,
where the Commission applies the statutory standard of ‘like’ or
‘most similar in characteristics and uses’ on a case-by-case
basis.” Id. The ITC’s findings with respect to domestic like
product may, but need not, match the scope of the investigation.
See Hosiden Corp. v. Advanced Display Mfrs., 85 F.3d 1561, 1568
(Fed. Cir. 1996) (explaining that the ITC has the discretion to
determine to what extent the class or kind of merchandise
described by Commerce falls within the scope).
Court No. 04-00215 Page 7
In the Final Determination, the ITC used its previously
employed six-factor analysis,2 which compares (1) physical
characteristics and uses; (2) interchangeability; (3) channels of
distribution; (4) customer and producer perceptions; (5)
manufacturing facilities, production processes, and production
employees; and (6) price of the domestic products to the subject
imports. See ITC Views at 8. Using this analysis, the
Commission concluded that finished fax TTR was part of the
domestic like product. See id. at 8–14.
Plaintiff questions the use of the six-factor test,
insisting that the ITC erred in not applying a semifinished
product analysis, which seeks to determine “whether articles at
different stages of processing should be included in the same
like product.”3 Br. of IIMAK in Supp. of R. 56.2 Mot. J. Agency
R. (“Pl.’s Br.”) at 30. As IIMAK explains in its brief:
Under this [semifinished product] analysis, the ITC
examines (1) whether the upstream article is dedicated
to the production of the downstream article or has
2
See, e.g., Acciai Speciali Terni S.p.A. v. United
States, 24 CIT 1064, 1065 and n.4, 118 F. Supp. 2d 1298, 1300 and
n.4 (2000)(upholding the ITC’s use of its six-factor test); NMB
Singapore Ltd. v. United States, 27 CIT __, __, 288 F. Supp. 2d
1306, 1326 (2003)(sustaining the ITC’s use of the six-factor
analysis).
3
As with the six-factor analysis, the ITC has used the
semifinished product analysis in the past. See, e.g., Stainless
Steel Bar from Brazil, India, Japan, and Spain, Inv. No. 731-TA-
678, 679, 681, and 682 (Final), USITC Pub. No. 2856 (1995).
Court No. 04-00215 Page 8
independent uses; (2) whether there are perceived to be
separate markets for the upstream and downstream
articles; (3) differences in the physical
characteristics and functions of the upstream and
downstream articles; (4) differences in the costs or
value of the vertically differentiated articles; and
(5) the significance and extent of the processes used
to transform the upstream into the downstream articles.
Pl.’s Br. at 31 n.32. Thus, using IIMAK’s preferred methodology,
the upstream product jumbo rolls would be compared to the
downstream products barcode TTR and finished fax TTR. IIMAK
explains:
Applying the semifinished product analysis in this case
would have [led] to the conclusion that [finished] fax
TTR is not part of the same like product as certain
TTR.4 Jumbo rolls are not dedicated to the production
of [finished] fax TTR. . . . [T]here are separate
markets for jumbo and [finished] fax TTR. There are
also differences in physical characteristics and
functions of jumbo rolls (which are large rolls
designed to be slit) and [finished] fax TTR (which are
used as a component part in fax machines and come in
more advanced packaging). While jumbo rolls are
completely fungible products with little or no
distinguishing features between products of the same
type, [finished] fax TTR is a tailor-made product. The
4
IIMAK notes that finished fax TTR was specifically
excluded from Commerce’s scope determination.
The scope includes jumbo rolls of wax TTR that are used
in facsimile and multifunction thermal transfer
printing devices . . . jumbo rolls of wax/resin TTR
that are used in bar code printing devices . . . and
rolls of bar code TTR that have been slit and finished
for use in specific printing devices (“finished TTR”).
The scope, however, excludes rolls of fax TTR that have
been slit and finished for use in other specific
printing devices (“finished fax TTR”).
ITC Views at 7 (footnote omitted) (internal citation omitted).
Court No. 04-00215 Page 9
functions of TTR in jumbo roll form and [finished] fax
TTR are also different. Jumbo TTR rolls have no
purpose other than slitting. They are, however,
primarily slit into subject barcode TTR. [Finished] fax
TTR is inserted into fax machines in which it is used
for thermal transfer printing.
Pl.’s Br. at 31–32 (internal citations omitted). IIMAK asserts
that it is entitled to the use of the semifinished product
analysis based on its utilization in previous cases, in
particular Chlorinated Isocyanurates From China and Spain, Inv.
Nos. 731-TA-1082-1083 (Prelim.), USITC Pub. No. 3705 (2004).5
Plaintiff contends that the ITC, having previously used the
semifinished product analysis, is bound to continue to use it in
this case. “The ITC must pick a methodology to apply to certain
factual circumstances and only depart from it when it provides a
reasoned justification for doing so.” Pl.’s Br. at 31.
The ITC maintains that “IIMAK’s discussion of ITC factual
determinations as though they were precedential is wrong as a
matter of law.” Def.’s Mem. at 11. In making this claim, the
Commission relies on Ranchers-Cattlemen Action Legal Found. v.
United States, 23 CIT 861, 74 F. Supp. 2d 1353 (1999), in which
5
In that case, the scope included all chemical and
physical forms of chlorinated isocyanurates (“isos”), and the ITC
concluded that multiple forms of isos were the same like product.
Nonetheless, the ITC used the semifinished product analysis to
determine whether two different physical forms of isos, granular
and tableted, were also part of the like product. IIMAK argues
that this decision “stands in direct contradiction of the ITC’s
position in the instant case.” Pl.’s Br. at 31.
Court No. 04-00215 Page 10
the Court explained that “[a]n action by the ITC becomes an
‘agency practice’ when a uniform and established procedure exists
that would lead a party, in the absence of notification of
change, reasonably to expect adherence to the established
practice or procedure.” Id. at 884–85, 74 F. Supp. 2d at 1374.
According to the Commission, ITC decisions must be “‘based upon
an independent evaluation of the factors with respect to the
unique economic situation of each product and industry under
investigation.’” Id. at 885, 74 F. Supp. 2d at 1374 (quoting
Citrosuco Paulista, S.A. v. United States, 12 CIT 1196, 1209, 704
F. Supp. 1075, 1087–88 (1988)); see also Nucor Corp. v. United
States, 28 CIT __, __, 318 F. Supp. 2d 1207, 1247 (2004) (noting
that each investigation involves a “‘unique combination and
interaction of many economic variables . . . .’”) (quoting
Ranchers-Cattlemen, 23 CIT at 891, 74 F. Supp. 2d at 1379). The
Commission further contends that IIMAK has not shown that it
deviated from an established practice or procedure, since it
applied its six-factor analysis, which it had previously employed
on a number of occasions. See Def.’s Mem. at 11.
The court agrees that the ITC’s prior factual
determinations cited by IIMAK do not constitute precedent that
the Commission is bound to follow. First, as with all
investigations, the present fact pattern is not precisely the
Court No. 04-00215 Page 11
same as any with which the ITC has been presented. As such,
while some of the facts may have appeared in other
investigations, the totality of the facts is unique. See, e.g.,
Committee for Fair Beam Imports v. United States, 27 CIT __, __,
slip op. 03-73 at 25 (June 27, 2003) (not reported in the Federal
Supplement), aff’d, 95 Fed. Appx. 347 (Fed. Cir. 2004) (“[T]he
fact that similar patterns are observed in different
investigations with regard to some of the variables does not
preclude a different interpretation of the patterns after viewing
the entire economic environment as a whole.”); see also
Citrosuco, 12 CIT at 1209, 704 F. Supp. at 1087 (“[E]ach injury
investigation is sui generis, involving a unique combination and
interaction of many economic variables; and consequently, a
particular circumstance in a prior investigation cannot be
regarded by the Commission as dispositive of the determination in
a later investigation.”) (internal quotation omitted). Nor does
the court find that the ITC had established an “agency practice”
from which it deviated in this case. As is noted in Ranchers-
Cattlemen, an agency practice is established when a uniform
procedure exists that would lead a party to reasonably expect
that the agency would adhere to the procedure. Id. at 884–85, 74
F. Supp. 2d at 1374. Here, an examination of the prior
investigations cited by both parties reveals that the ITC has
chosen the six-factor test in some instances and the semifinished
Court No. 04-00215 Page 12
product analysis in others with not wholly dissimilar fact
patterns.6 Thus, IIMAK cannot claim any reasonable expectation
that its preferred methodology would be used.
Nonetheless, the ITC’s decision to use the six-factor
analysis has not been sufficiently explained to justify its
utilization in this case. Here, the ITC does nothing more than
state its conclusion that “it found the traditional six-factor
test to be the more useful to address the issue of whether to
include finished fax TTR in the domestic like product because the
scope included products that are at the same level of processing
as the finished fax TTR.” Def.’s Mem. at 26. The Commission
further claims that because “[t]he aim of both the traditional
six-factor test and the semifinished product analysis is the same
– to ascertain whether there is a clear dividing line between
products,” id. at 25, it has the discretion to determine, based
6
For example, the ITC applied its six-factor test in
Certain Stainless Steel Plate From Belgium, Canada, Italy, Korea,
South Africa, and Taiwan, Invs. Nos. 701-TA-376, 377, and 379
(Final) and Invs. Nos. 731-TA-788-793 (Final), USITC Pub. No.
3188 (1999) and in Certain Bearings From China, France, Germany,
Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United
Kingdom, Inv. Nos. AA1921-143, 731-TA-341, 731-TA-343-345, 731-
TA-391-397, and 731-TA-399 (Rev.), USITC Pub. No. 3309 (2000).
However, the ITC used the semifinished product analysis in
Stainless Steel Bar From Brazil, India, Japan, and Spain, Inv.
No. 731-TA-678, 679, 681, and 682 (Final), USITC Pub. No. 2856
(1995) and in Chlorinated Isocyanurates From China and Spain,
Inv. No. 731-TA-1082 and 1083 (Prelim.), USITC Pub. No. 3705
(2004).
Court No. 04-00215 Page 13
on the particular facts of the investigation, which test is the
appropriate one to apply.
Although the ITC is permitted to make varying determinations
based on the facts of each case, it may not act arbitrarily.
Rather, the ITC must present a “reviewable, reasoned basis” for
its determinations. Bando Chem. Indus., Ltd. v. United States,
17 CIT 798, 799 (1993) (not reported in the Federal Supplement).
“[An] agency must explain its rationale . . . such that a court
may follow and review its line of analysis, its reasonable
assumptions, and other relevant considerations.” Allegheny
Ludlum Corp. v. United States, 29 CIT __, __, 358 F. Supp. 2d
1334, 1344 (2005). “Explanation is necessary . . . for this
court to perform its statutory review function.” Dastech Int’l,
Inc. v. United States, 21 CIT 469, 475, 963 F. Supp. 1220, 1226
(1997); see also Asociacion Colombiana de Exportadores de Flores
v. United States, 12 CIT 1174, 1177, 704 F. Supp. 1068, 1071
(1988) (“[R]easons for the choices made among various potentially
acceptable alternatives usually need to be explained.”). On
remand, therefore, the ITC is directed to explain why it is
justified in using its six-factor analysis in defining the
domestic like product in this case. In doing so, the ITC shall
explicitly address why the semifinished product analysis urged by
plaintiff is not appropriate here.
Court No. 04-00215 Page 14
II. Volume and Price Effects of Subject Imports7
IIMAK next disputes the methodology the ITC used to measure
the volume and price effects of the subject imports.8 In its
volume analysis, the ITC measured only imports of jumbo rolls.
IIMAK asserts that the proper analysis would have counted as
imports the finished TTR produced in the United States from the
imported jumbo rolls. Specifically, plaintiff argues that “there
can be no dispute” that the jumbo rolls are used merely for
transformation into finished TTR (either finished barcode or
finished fax TTR) by a U.S. company related to the importer (and
thus excluded from the U.S. industry), so that it can be sold to
an unrelated customer in the market for finished TTR. Pl.’s Br.
at 9. Thus, “the only meaningful way to measure volume factors
and price effects of imports on the U.S. industry is based on the
volume and prices of the finished TTR into which the imported
7
While it might be assumed that a discussion of this
issue could reasonably await the court’s findings concerning
domestic like product, since both parties agree that the domestic
like product contains both jumbo rolls and at least one
downstream product, a discussion of plaintiff’s claims relating
to volume is proper here.
8
In making its injury determination, 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 product, and (III)
the impact of imports of such merchandise on domestic producers
of domestic like products . . . .” 19 U.S.C. § 1677(7)(B).
Court No. 04-00215 Page 15
product is made.” Id. at 9 (emphasis added).9 IIMAK states that
by only looking at the volume and price effects of imported jumbo
rolls, the ITC fails to take into account that “competition for
TTR sales almost exclusively occurs at the further processed
level . . . . There is simply no way to measure the effects on
the U.S. market of subject imports dedicated to a downstream
product if the ITC does not measure the effects at the downstream
level.” Id.In its ITC Views, the Commission disputes IIMAK’s claim that
it should measure shipments and market share of subject imports
using the downstream product. The ITC explains, “[O]ur finding
that the activities of domestic [slitters] are domestic
production means that their shipments are domestic shipments.”
ITC Views at 32–33. In other words, the ITC relies on its
finding that the work performed by the domestic slitters rendered
them domestic producers and, thus, necessarily excluded their
products from being part of subject imports. This being the
case, according to the Commission, the only remaining imported
product that could be used to measure volume and price effects
9
IIMAK explains its proposed methodology as “measur[ing]
imports’ effects based on the first point in the distribution
chain at which they entered the U.S. market on an arm’s length
basis. This includes U.S. merchant market sales of both subject
imported jumbo rolls and [finished] TTR made from imported
subject jumbo rolls.” Pl.’s Br. at 10 n.8.
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was the jumbo rolls.
The ITC used its production-related activities test to reach
its conclusion that the slitters produce a domestic product. Id.The Commission explains:
First, testimonial evidence by several [slitters]
indicated that the initial capital investment necessary
to compete effectively in the U.S. market was
significant, and included investment in multiple
machines necessary to produce the sizes and quantities
required by large purchasers. IIMAK’s own witness
agreed that slitting machines are costly. . . . As to
technical expertise involved in U.S. production
activities, the ITC found, based on testimony and other
evidence presented by [slitters] ITW and Armor, that
the level of expertise required for slitting operations
is not insignificant. Based on [slitters’]
questionnaire responses, the ITC also found that the
percentage of value added by slitting and packaging
operations (an average of 30 percent of the total cost
of the end product) is significant. With respect to
employment levels, the ITC noted that all parties,
including IIMAK, agreed that slitting and packaging
operations are labor intensive, and require employment
of a substantial number of employees.
Def.’s Mem. at 27–28 (internal citations omitted); see also ITC
Views at 15-19 (analyzing the six factors related to production
activities that the ITC considers in deciding whether a firm
qualifies as a domestic producer).
IIMAK maintains, however, that “[e]ven assuming the
Commission correctly found that the converted products undergo
Court No. 04-00215 Page 17
substantial processing in the United States,10 these products
still are created for the sole benefit of the foreign respondents
and are still within the scope.” Pl.’s Br. at 11–12.
The ITC enjoys broad discretion to choose a methodology for
measuring volume. Ceramica Regiomontana, S.A. v. United States,
10 CIT 399, 404–05, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d
1137 (Fed. Cir. 1987) (“As long as the agency’s methodology and
procedures are a reasonable means of effectuating the statutory
purpose . . . the court will not impose its own views as to the
sufficiency of the agency’s investigation or question the
agency’s methodology.”). Here, the court agrees with the ITC’s
finding that the U.S.-based slitters engaged in sufficient
production-related activities in transforming the jumbo rolls
into finished TTR to constitute domestic production. See USEC
Inc. v. United States, 27 CIT __, __, 259 F. Supp. 2d 1310, 1327
(2003) (noting that the production-related activities test
focuses on whether “the overall nature of production-related
activities in the United States . . . are sufficient for a
company to be considered a member of the domestic industry.”)
(internal quotation omitted). In its ITC Views, the Commission
fully lays out its methodology and the facts it relied on in
10
It is worth noting that IIMAK did not appeal this
finding.
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reaching its conclusions. See ITC Views at 16 (“[T]he value
added by converting operations to the end-product, the number and
technical expertise of workers employed by slitters, and their
significant capital expenditures all indicate that these
companies do not merely engage in low-level processing as
petitioner alleges.”). That being the case, the court finds that
the ITC was justified in excluding finished TTR from its volume
and price analysis. As a result, the sole remaining product that
could constitute subject merchandise was the jumbo rolls. Thus,
the court affirms the Commission’s use of jumbo rolls for the
purpose of measuring volume and price effects.
III. Substantial Evidence — Indirect Effects
In arguing that the ITC did not support its conclusions with
substantial evidence, IIMAK first claims that it did not consider
the indirect effects of the subject imports on the domestic
industry. IIMAK insists that “[t]he ITC has [previously]
determined that a finding of injurious price effects is not
limited to instances where there is head-to-head price
competition.” Pl.’s Br. at 18. Plaintiff provides several
examples in its brief:
[I]n Canned Pineapple Fruit from Thailand, Inv. No.
731-TA-706 (Review), USITC Pub. 3417 at 12 (May 2001),
the ITC held that prices in one product segment
affected prices in another. Similarly, in Low Enriched
Uranium from France, Germany, the Netherlands, and the
United Kingdom, Inv. Nos. 701-TA-409-412 and 731-TA-909
Court No. 04-00215 Page 19
(Final), USITC Pub. 3486 at 11 (February 2002), the ITC
found that a small amount of product sold in a
commodity spot market has effects on prices of products
sold under contract. This Court likewise has held that
“{s}ection 1677(7)(C)(ii) permits a finding of injury
where an imported product . . . may not be directly
substitutable but nonetheless causes price depression
or suppression for the lower cost domestic product.”
R-M Indus., Inc. v. United States, 848 F. Supp. 204,
211 (CIT 1994).
Id. at 18 n.18(footnote omitted). That is, IIMAK claims that the
Commission failed to take into account evidence that slitters
using imported jumbo rolls gained an advantage due to the lower
cost of these rolls. In response, the ITC states that it “took
into account . . . that some U.S. production of finished TTR
started with jumbo rolls of imported TTR.” Def.’s Mem. at 37.
The ITC explains:
Contrary to IIMAK’s assertion, the ITC did not ignore
IIMAK’s argument that [slitters] were driving prices
down because they indirectly benefitted from their
importation of subject jumbo rolls. The ITC examined
this allegation and found that the evidence suggested
otherwise. IIMAK overlooks the ITC’s statement that
the lack of underselling shown in the limited pricing
data was corroborated by the average unit value (AUVs)
for jumbo rolls. The AUV data show that, for each year
of the [period of investigation], subject import unit
values of jumbo rolls imported by the [slitters] were
higher than the unit values of shipments of domestic
jumbo rolls. In addition, the ITC observed that the
financial performance of the [slitters] that were most
dependent on imported jumbo rolls (i.e., the four
related party [slitters]) was no better than that of
the integrated producers. In light of these facts, the
ITC reasonably found that importation of jumbo rolls
did not confer a competitive advantage to [slitters]
over the rest of the industry.
Id. at 34–35 (internal citations omitted)(footnote omitted).
Court No. 04-00215 Page 20
Thus, the ITC states that
With respect to IIMAK’s arguments concerning “indirect
effects” the ITC took into account . . . that some U.S.
production of finished TTR started with jumbo rolls of
imported TTR. The ITC did not “ignore” the conditions
of competition emphasized by IIMAK. . . . As discussed
above, the ITC considered IIMAK’s argument that the
[slitters] indirectly benefitted from the imports. The
ITC found that this premise was not supported by the
record evidence concerning [average unit values],
comparative financial data, industry capacity data, and
questionnaire responses. IIMAK may wish the ITC had
weighed the evidence in a different manner, but that
concern is not sufficient to sustain its appeal.
Id. at 37 (internal citations omitted). This claim is supported
by the ITC Views and the evidence cited therein: “The pricing
and average unit value data indicate that subject jumbo rolls
were priced higher than domestic jumbo rolls, and as such
[slitters] did not have a raw material cost advantage over
domestic coaters.” ITC Views at 35.
An examination of the data used by the ITC in reaching its
conclusion reveals that there were no indirect effects of the
sales of jumbo rolls because there was indeed no underselling of
imported jumbo rolls, nor was there any evidence that the
consumers of these rolls benefitted financially from their use.
Thus, despite IIMAK’s arguments to the contrary, the ITC did
examine the possibility of indirect effects and supported its
conclusion that there were none with substantial evidence.
Court No. 04-00215 Page 21
IV. Reliability of Measurement of Price Effects
IIMAK next contends that the ITC erred by not using prices
for finished TTR to measure the price effects of the subject
merchandise imports. In its analysis, the ITC used prices for
imports of jumbo rolls. As has been previously noted, there are
few open market sales of jumbo rolls. IIMAK argues:
Price comparison data for products with low volumes are
not reliable for purposes of making price comparisons.
To the extent that data for low volume products show
overselling, the ITC thus should not rely on this
overselling to make a negative determination. This
Court has held that the ITC reasonably gives less
weight to price comparisons for products where there
are only a limited number of comparisons.11
Pl.’s Br. at 19–20 (internal citations omitted).
IIMAK’s argument, in essence, is but another way of saying
that it objects to the Commission’s sole use of jumbo rolls when
measuring volume. The ITC disputes IIMAK’s claim that the data
it relied on for price comparisons was unreliable due to low
11
IIMAK cites several cases to support its position.
See, e.g., Taiwan Semiconductor Industry Ass’n v. United States,
24 CIT 914, 925, 118 F. Supp. 2d 1250, 1260 n.15 (2000) (“The
record supports the Commission’s conclusion that the quantities
of products . . . were relatively small. Therefore, the
Commission reasonably discounted the data regarding [these]
products . . . in its analysis.”) (internal citations omitted);
R-M Indus., Inc. v. United States, 18 CIT 219, 228, 848 F. Supp.
204, 211 (1994) (affirming the ITC’s decision to not rely on
price comparison data where data was limited); Trent Tube Div.,
Crucible Mat’ls Corp. v. United States, 14 CIT 386, 403, 741 F.
Supp. 921, 935 (1990) (giving limited weight to evidence of
underselling where only a limited number of price comparisons
were available).
Court No. 04-00215 Page 22
product volume, explaining that it relied on these comparisons
“because there were only small volumes of sales in this
category,” Def.’s Mem. at 34, not because the ITC failed to
adequately investigate prices. In other words, “[s]ince there
are not many sales of domestic jumbo TTR on the open market, the
volume of shipments represented by the price data was of course
small.” Id. As this court has determined that the Commission is
justified in its finding that slitters produce a domestic
product, it will not disturb the ITC’s use of jumbo rolls based
on scarcity of transactions. Beyond showing that the ITC based
its conclusions on a small number of transactions because there
were, in fact, few transactions, IIMAK has failed to demonstrate
that either the data or the conclusions drawn from the data are
unreliable. See 19 U.S.C. § 1677(7)(c)(1) (affording the ITC
broad discretion to determine the best methodology by which to
measure volume). This being the case, the court sustains this
portion of the ITC’s findings.
V. The ITC’s Findings Related to Price Movement12
Next, IIMAK contends that the ITC ignored pricing evidence
12
Again, plaintiff’s argument concerning the comparison
of the subject imports to the domestic like product does not
implicate its arguments concerning the inclusion of fax TTR in
the definition of domestic like product.
Court No. 04-00215 Page 23
calling into question its negative determination.13 The
Commission found that the movement of prices on the U.S. market
was unrelated to the prices of subject imports. ITC Views at
34–35. It reached this finding, at least in part, by examining
the prices at which “Product 3,” which is the slit form of
wax/resin products manufactured by IIMAK and other producers, was
sold to original equipment manufacturers (“OEMs”). See Conf.
Staff Rep., Conf. R. Doc. 292 at Table V-6.14 IIMAK complains of
the ITC’s finding of divergent trends, arguing that although U.S.
and import prices for sales of Product 3 to OEMs were divergent
over the period of investigation, the prices for sales of the
same product to slitters/converters and distributors/resellers
13
Title 19 U.S.C. § 1677(7)(C)(ii) provides that in
evaluating price effects, 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, and
(II) 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.
Id.14
Table V-6 shows that U.S. prices do not correlate to
the prices for the imported product. For example, U.S. prices
increased from January through September of 2002, while import
prices decreased. Similarly, U.S. prices fluctuated (i.e.,
decreased, then increased) from April through December of 2001,
while import prices steadily declined for one importer and
steadily increased for another. Conf. Staff Rep., Conf. R. Doc.
292 at Table V-6.
Court No. 04-00215 Page 24
were strongly correlated.15 While the ITC explains that it did
not use the other products for which it had questionnaire
responses because they included some domestic product, see ITC
Views at 33, it does not provide an explanation in answer to
plaintiff’s argument. Because the ITC does not address this
argument in its papers, on remand, the Commission shall do so,
stating with particularity whether plaintiff is correct with
respect to its correlation calculations.
VI. Volume — Market Share
In reaching its volume findings, the Commission concluded:
“While the increase in absolute quantity of subject imports could
be viewed as significant, subject imports grew only slightly
relative to domestic consumption and decreased relative to
domestic production. Given that fact . . . we do not find
subject import volume overall to be significant.” ITC Views at
15
IIMAK states:
While it is true that U.S. and import prices for sales
of Product 3 to OEMs were divergent over the period of
investigation, this product/channel combination is only
one of four for which the ITC collected price data for
sales of slit TTR, and accounted for only [[
]] of U.S. coaters’ shipment volume these four
product/channel combinations and [[ ]] of
importers’/converters’ shipment volumes. For the other
three product/channel combinations, there were very
strong correlations between U.S. and importer/converter
prices for slit TTR.
Pl.’s Mem. at 21–22 (internal citations omitted).
Court No. 04-00215 Page 25
32.
With respect to market share, plaintiff makes two related
claims. First, IIMAK claims that the Commission did not take
into account the increases in market share of imports during the
period of investigation, stating that “the ITC found an increase
in subject imports’ market share over the period of
investigation. It was inappropriate for the ITC to dismiss this
increasing market share of the subject imports without
explanation.” Pl.’s Br. at 22. Thus, IIMAK maintains that the
ITC erred by failing to consider even small increases when, for a
fungible product such as TTR, “even small market share increases
can be injurious.” Id. Thus, IIMAK insists that these absolute
increases in market share, even though small, must be considered.
Second, IIMAK urges that 19 U.S.C. § 1677(7)(C)(i)16
requires the ITC to consider whether volume and market shares of
the subject imports are significant on an absolute basis, and
that “the ITC’s volume findings are limited only to a
determination that the increases in the volume and market share
16
The statute states in relevant part, “In evaluating the
volume of imports of merchandise, the Commission shall consider
whether the volume of imports of the merchandise, or any increase
in that volume, either in absolute terms or relative to
production or consumption in the United States, is significant.”
19 U.S.C. § 1677(7)(C)(i).
Court No. 04-00215 Page 26
are not significant. . . . As such, the ITC’s analysis is
incomplete in that it did not analyze whether the subject
imports’ market shares, standing alone, were significant.” Id.
at 23.
As to the second argument, the ITC defends its method of
analyzing volume, explaining that “[u]nder the statute, the ITC
considers whether the volume of subject imports or any increase
in that volume, either in absolute terms or relative to
production or consumption in the United States is significant.”
Def.’s Mem. at 32 (emphasis in original). The ITC cites several
cases in which the Court has found that any one of the several
methods of analyzing volume is sufficient. See Copperweld Corp.
v. United States, 12 CIT 148, 167, 682 F. Supp. 552, 570 (1988)
(explaining that the statutory language, “when read in
conjunction with the legislative history[,]17 indicates that
disjunctive language was chosen to signify congressional intent
that the agency be given broad discretion to analyze import
volume in the context of the industry concerned . . . .”); see
17
The legislative history reads in relevant part: “In
determining whether an industry is materially injured, as that
phrase is used in the bill, the ITC will consider . . . the
factors set forth in [the statute] together with any other
factors it deems relevant. . . .” Copperweld, 12 CIT at 167, 682
F. Supp. at 570 (emphasis added)(quoting S. Rep. No. 249, 96th
Cong., 1st Sess. 88, reprinted in 1979 U.S.C.C.A.N. 381, 474).
Court No. 04-00215 Page 27
also Am. Bearing Mfrs. Ass’n. v. United States, 28 CIT __, __,
350 F. Supp. 2d 1100, 1108 (2004) (“Congress recognized that in
determining the significance of the volume, price effect, and
impact of imports in the U.S. market, the ITC must evaluate the
facts of each particular case, and the industry involved, and
make its material injury determination accordingly.”). Thus,
both the statute and the cases indicate that the Commission did
not exceed the discretion granted it in choosing to rely most
heavily on relative comparisons rather than the absolute size of
market share.
With respect to the small increase in subject import volume
and market share, the ITC observed:
Subject import volume increased over the period
examined, from 295 million msi in 2001 to 373 million
msi in 2003, an increase of 26 percent; shipments of
subject imports rose 18 percent over the same period.18
. . . As a percentage of domestic production, subject
imports were [[ ]] percent (by quantity) in 2001,
19.7 percent in 2002, and 13.5 percent in 2003. Thus,
subject imports, measured as a share of domestic
production, actually declined over the period of
investigation.
In contrast, the domestic industry’s market share
increased significantly over the period of
18
Specifically, “[s]ubject imports accounted for [[
]] percent of apparent U.S. consumption (by quantity) in 2001,
[[ ]] percent in 2002, and [[ ]] percent in 2003.” ITC
Views at 31. Thus, subject imports’ share of the U.S. market
increased less than [[ ]] over the period of
investigation.
Court No. 04-00215 Page 28
investigation.19 . . . Coinciding with this increase
in domestic market share, nonsubject imports’ market
share declined . . . over the same period.20 Thus the
domestic industry gained market share at the expense of
nonsubject imports during the period of investigation.
ITC Views at 31—32 (citations omitted) (footnote omitted). Based
on the foregoing, the court finds that the ITC conformed to the
statute by examining the significance of volume relative to both
production and consumption. While the Commission did not
explicitly analyze the small absolute increase in imported
product market shares, its discussion demonstrates that it was
not unmindful of that fact. Therefore, the ITC has satisfied the
statutory demands of 19 U.S.C. § 1677(7)(C)(i).
VII. Impact
A. Profitability
IIMAK argues (1) that the ITC failed to address what it
calls the “anomaly” of declining operating income and
profitability at a time of increasing consumption21 and (2) that
19
Specifically, “[t]he domestic industry’s share of
apparent U.S. consumption was [[ ]] percent in 2001, [[
]] percent in 2002, and [[ ]] percent in 2003, for a period-
wide increase of [[ ]] percentage points.” ITC Views at 32.
20
The market share for nonsubject imports declined by [[
]] percentage points over the period of investigation. See
ITC Views at 32.
21
IIMAK relies on Certain Ceramic Station Post Insulators
from Japan, Inv. No. 731-TA-1023 (Prelim.), USITC Pub. No. 3578
(2003), to support its argument. In that case, the ITC stated:
(continued...)
Court No. 04-00215 Page 29
slight declines in operating income cited by the ITC “were skewed
by one company with large and increasing profitability over the
period of investigation.”22 Pl.’s Br. at 24. IIMAK claims that
21
(...continued)
Based on significant declines or sustained weaknesses
in most of the performance indicators of the domestic
industry during a period of increasing demand and at
the same time that the subject merchandise was being
imported in significantly increasing quantities and
sold at prices significantly below the weighted average
of domestic industry sales, we find that the subject
imports had a significant adverse impact on the
domestic industry.
Id. at 14.
The ITC disputes plaintiff’s characterization of its finding
in Ceramic Station Post Insulators, stating that in that
investigation, “the ITC found sustained weaknesses in most of the
performance indicators of the domestic industry.” Def.’s Mem. at
38 (internal quotation omitted). The ITC notes that this
“sharply contrasts with the instant case, in which the ITC found
not only that the industry was profitable, but also that the
industry experienced significant gains in productivity and
declining costs, accompanied by increases in production,
shipments, and market share.” Id.The court finds IIMAK’s reliance on Post Insulators from
Japan, Inv. No. 731-TA-1023 (Prelim.), USITC Pub. No. 3578
(2003), to be misplaced. There, the ITC found a significant
adverse impact on the domestic industry in part based on
“significant declines or sustained weaknesses” in most of the
performance indicators of the domestic industry. Id. at 14.
Here, by contrast, several large U.S. producers operated at a
profit during the period of investigation.
22
IIMAK states:
Unlike all other coaters, [[ ]] increased its
operating income over the period of investigation; in
fact, it increased its operating income by [[ ]]
(continued...)
Court No. 04-00215 Page 30
this company’s increases in operating income over the period of
investigation were not in line with the experience of the
industry. See id. at 25. Thus, IIMAK insists that the ITC
ignored a significant condition of competition when it did not
account for this one company’s data having overshadowed the data
for the rest of industry. See id.The ITC maintains that the anomaly to which IIMAK refers,
i.e., that the domestic industry experienced declining operating
income and profitability at a time of increasing consumption, was
not in fact an anomaly, since the decline in operating income was
slight and the decline in profitability was “marginal.” Def.’s
Mem. at 37.23 The ITC also disputes IIMAK’s contention that the
data were skewed by one company with large and increasing profits
22
(...continued)
percent. It experienced these increases while [[
]] experienced declines in
operating income. Moreover, by the end of the period
of investigation, [[ ]]’s operating income
constituted [[ ]] percent of the operating
income for the industry as a whole. Notably, [[
]], a product for which there
is not subject import competition.
Pl.’s Br. at 24–25.
23
Operating income declined by [[ ]] percent, while
declines in operating income as a percentage of net sales
(profit) decreased from [[ ]] percent in 2001 to [[ ]]
percent in 2003, for a total decline of [[ ]] percent. ITC
Views at 38; see also Conf. Staff Rep., Conf. R. Doc. 292 at
Table C-3.
Court No. 04-00215 Page 31
by noting that three other companies24 also operated at a profit
throughout the period of investigation. See id.25
The court finds that the ITC has sufficiently addressed the
“anomaly” cited by IIMAK. First, there is little evidence that
the conditions set out by plaintiff are abnormal, since the
declines in both operating income and profitability were very
slight. See supra note 23. Second, it is apparent that the
facts do not support plaintiff’s contention that only one company
was profitable during the period of investigation. Thus, the
court finds no merit in IIMAK’s contentions.
24
The other U.S. companies that performed profitably were
[[ ]]. Def.’s Mem. at 38; see also ITC
Views at 38 (citing Conf. Staff Rep., Conf. R. Doc. 292 at Table
C-3 for its finding that the domestic industry operated
profitably during the period of investigation).
25
As previously noted, IIMAK also asserts that [[
]] produced only [[ ]] TTR. This assertion is
unconvincing. As the ITC notes:
This assertion ignores that [[
]] . . .
. Just as the distinctions between [[
]] do not
create clear dividing lines between slit fax TTR and
slit barcode TTR, the fact that [[
]] does not mean
its data should be set aside from the data for the rest
of the industry.
Def.’s Mem. at 38, 39.
Court No. 04-00215 Page 32
B. The ITC’s finding that “alternative factors,” not
imports, were the cause of price declines over the
period of investigation.
The ITC found that several factors other than imports were
responsible for declining prices during the period of
investigation. In particular, the Commission noted that intra-
industry competition was severe, a finding that IIMAK does not
dispute. Nevertheless, IIMAK insists that the Commission erred
in finding that factors other than imports were responsible for
the price declines.
In particular, IIMAK claims that, in finding that Sony
Chemical Corporation of America (“Sony”) was the downward price
leader, the ITC “has ignored data26 pertaining to other producers
26
IIMAK contends that Table E-1, on which the ITC relies
for its conclusions, actually shows “(1) pervasive underselling
of [[ ]] and (2) early
[[
]].” Pl.’s Br. at 26 (citing Conf.
Staff Rep., Conf. R. Doc. 292).
A review of Table E-1 confirms that in most quarters from
2001 through 2003, the Japanese producers undersold [[
]] although not every Japanese producer undersold both [[
]] in every quarter. Moreover, the Japanese
producers undersold [[ ]] in only
about [[ ]] of the twelve quarters from 2001 through 2003 for
which data was provided. The court finds that by showing that
the history of declining prices did not show price reductions
contemporaneous with imported merchandise underselling, the ITC
has provided sufficient evidence to refute IIMAK’s claim that
domestic price declines resulted solely from competition from
foreign imports. Rather, the ITC has provided evidence to show
(continued...)
Court No. 04-00215 Page 33
and disregarded the data in support of Sony’s claim that it
decreased prices to meet import competition.” Pl.’s Br. at 25.
In support of its claim, IIMAK cites Sony’s Prehearing Submission
in Support of the Petition, Conf. R. Doc. 253, in which Sony
states that it “is not now, and has not been, the price leader in
the industry. Rather, to the extent it has reduced prices at
all, Sony has done so in order to meet the downward price
competition led by global imports.” Id.
The ITC insists that its conclusion that Sony was the
downward price leader is supported by substantial evidence. It
explains that it “relied on public statements . . . corroborating
that Sony was at the front of an intra-industry price war, and on
price data indicating that Sony . . . lowered its prices below
those of [others] to gain larger volume sales.” Def.’s Mem. at
37. As evidence for its conclusions, the Commission cites the
statement of a Sony consultant who later became an executive, who
stated that “through aggressive pricing, we believe we can cut
our competition numbers from 19 or 20 down to five,” and that
“[w]e didn’t start these price wars, but we’re going to finish
them.” ITC Views at 30–31, 31 n.145. In addition, a large
26
(...continued)
that although domestic producers reduced their prices, they did
so in large measure in response to severe intra-industry
competition and because of increases in both capacity and
productivity.
Court No. 04-00215 Page 34
majority of the responding purchasers identified Sony as the
price leader in the industry by 2003. See ITC Views at 36 n.176.
It is apparent that the ITC has provided substantial
evidence showing that Sony was the downward price leader during
the period of investigation.
IIMAK next argues that the ITC relied on erroneous data for
its finding that price declines were caused by declines in unit
costs and increases in productivity. IIMAK claims that the ITC’s
data, contained in Table D-1, Conf. Staff Rep., Conf. R. Doc.
292, pertained only to U.S. coaters’ operations, even though the
ITC included some slitters in the domestic industry. Thus, IIMAK
argues,
any evaluation of the costs for the domestic producers
should include the costs of any slitters that are not
excluded from the U.S. industry as related parties.
Making the proper comparison reveals that unit prices
declined by more than unit sales costs for the U.S.
producers. Moreover, the correct data show that both
gross and operating margins declined, an unlikely
phenomenon when costs decline at the same rate as
prices. Consequently, the ITC erroneously concluded
that price declines were driven by declines in costs.
Pl.’s Br. at 27–28.
An examination of Table D-1 reveals that IIMAK is correct
that it pertains only to U.S. coaters’ operations, not to
slitters. It would appear that the costs of domestic producers
Court No. 04-00215 Page 35
should include both coaters and those slitters unrelated to
foreign producers. As this omission is unexplained by the
Commission, on remand, the ITC is directed to provide an
explanation as to why its analysis did not also account for the
costs of U.S. non-related party slitters.
Finally, IIMAK contends that even if the factors cited by
the ITC were, in fact, partly responsible for the domestic
industry’s price declines, the Commission did not address the
question of whether the subject imports were also a cause of the
domestic industry’s injury. IIMAK argues that a determination
that imports are causing material injury under 19 U.S.C. §
1673d(b)(1) “does not require that the imports be the sole or
principal cause of the injury,” Nippon Steel Corp. v. Int’l Trade
Comm’n, 345 F.3d 1379, 1381 (Fed. Cir. 2003); therefore,
according to plaintiff, the ITC has failed to show that the
subject imports are not at least a significant factor in causing
the injury suffered by U.S. industry. Id. at 29.
Despite IIMAK’s claims, however, it is apparent that the ITC
has applied the proper standard. Indeed, the Commission made the
very finding that IIMAK claims is absent. “We find that . . .
imports . . . have not had a significant negative impact on the
condition of the domestic industry during the period examined.
Court No. 04-00215 Page 36
As discussed above, we find both the volume of subject imports
and price effects of the subject imports not to be significant.”
ITC Views at 37. Moreover, the ITC specifically addressed price
effects relating to imports, stating:
The pricing data . . . reflect a downward trend for
domestic prices during the period of investigation.
This trend was the same at the jumbo roll stage of
processing and at the finished [TTR] stage. We find
that the movement of domestic prices (upward and
downward) was largely unrelated to the price of
imported merchandise.
Id. at 34–35.27 Thus, plaintiff’s assertion is not supported by
the record.
VIII. The ITC’s Determination That the Industry Is Not
Threatened With Material Injury
Finally, IIMAK contends that the problems with the ITC’s
material injury analysis “also infect the ITC’s threat analysis,
thereby rendering the finding that the industry is not threatened
with injury fundamentally flawed as well.” Pl.’s Br. at 37.
IIMAK explains:
The ITC found that “the increase in the volume and
market share of the subject imports does not indicate a
likelihood of substantially increased imports. Subject
imports increased only slightly relative to U.S.
consumption and decreased relative to U.S. production.”
Properly measuring imports relative to consumption and
27
The ITC relies on Table V-6 of its Staff Report, which
indicates that domestic price movements did not move in tandem
with the prices of the imported merchandise. See Conf. Staff
Rep., Conf. R. Doc. 292 at Table V-6.
Court No. 04-00215 Page 37
production . . . would demonstrate dramatic increases
in those export volumes. . . . [Moreover], [w]hen the
ITC conducts a proper pricing analysis, it should find
that subject imports had substantial negative price
effects.
Id. at 37-38. In addition, IIMAK disputes the ITC’s reliance on
the domestic industry’s “positive and steady performance” for its
finding that the U.S. industry was not threatened with injury.
Id. at 38. IIMAK claims that the ITC never addressed its claim
that the industry was only able to maintain its profits “through
cost-cutting measures that could not be sustained in the long-
run.” Id.
For its part, the ITC chooses to rest on its prior arguments
regarding domestic like product, stating:
[P]laintiff’s claims concerning the ITC’s finding of no
threat of material injury stem from IIMAK’s
dissatisfaction with the ITC’s definition of domestic
like product and the domestic industry. . . . For the
same reasons that the court should reject plaintiff’s
efforts to reweigh the evidence and impose its own
preferred methodology on the ITC’s present injury
analysis, the court should likewise reject plaintiff’s
claims regarding threat.
Def.’s Mem. at 39.
Here, a discussion of the questions of material injury and
threat must await the Commission’s response to the remand
instructions. As such, the court will address IIMAK’s concerns
following the ITC’s response to those instructions.
Court No. 04-00215 Page 38
CONCLUSION
Based on the foregoing, this matter is remanded to the ITC
for action in accordance with this opinion. Remand results are
due on April 24, 2006, comments are due on May 24, 2006, and
replies to such comments are due on June 5, 2006.
/s/Richard K. Eaton
Richard K. Eaton, Judge
Dated: January 23, 2006
New York, New York