MTD Prods. Inc. v. United States

Slip Op. 23-34
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 21-00264
MTD PRODUCTS INC.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
BRIGGS & STRATTON, LLC,
Defendant-Intervenor.
Before: M. Miller Baker, Judge
OPINION
[The court denies Plaintiff’s motion for judgment on
the agency record and instead grants judgment for De-
fendant and Defendant-Intervenor.]
Dated: March 16, 2023
Alex Schaefer, Crowell & Moring LLP of Washington,
DC, argued for Plaintiff. With him on the briefs was
Michael Bowen.
Henry N.L. Smith, Office of the General Counsel, U.S.
International Trade Commission of Washington, DC,
argued for Defendant. With him on the brief was
Ct. No. 21-00264 Page 2
Andrea C. Casson, Assistant General Counsel for Liti-
gation.
Clint Long, King & Spalding LLP of Washington, DC,
argued for Defendant-Intervenor. On the brief for De-
fendant-Intervenor was Stephen J. Orava.
Baker, Judge: In this case stemming from anti-
dumping and countervailing duty investigations of
small vertical shaft engines from China, a domestic
importer challenges the International Trade Commis-
sion’s finding that a surge in imports shortly before
duties took effect warranted retroactive application of
such duties. For the reasons set out below, the court
sustains the Commission’s determination.
I
Under the Tariff Act of 1930, as amended, the Com-
merce Department ordinarily imposes antidumping
and countervailing duties prospectively. See 19 C.F.R.
§ 351.206(a) (explaining that antidumping and coun-
tervailing duties normally apply to entries of merchan-
dise “made on or after the date on which the Secretary
first imposes provisional measures (most often the
date on which notice of an affirmative preliminary de-
termination is published in the Federal Register)”); see
also 19 U.S.C. §§ 1671b(d)(2)(B) (countervailing du-
ties), 1673b(d)(2)(B) (antidumping duties).
But the statute also contains a procedure allowing
for retroactive application of duties in certain situa-
Ct. No. 21-00264 Page 3
tions. If the petitioner whose allegations sparked the
investigation alleges “critical circumstances,” the De-
partment must also determine whether “there have
been massive imports of the subject merchandise over
a relatively short period.” 19 U.S.C. §§ 1671d(a)(2)
(countervailable subsidies), 1673d(a)(3) (dumping).
If Commerce finds such critical circumstances, the
Commission must then determine whether the im-
ports in question “are likely to undermine seriously
the remedial effect” of the order to be issued. Id.
§§ 1671d(b)(4)(A)(i) (countervailable subsidies),
1673d(b)(4)(A)(i) (dumping). In making that determi-
nation, the Commission must consider
(I) the timing and volume of the imports,
(II) a rapid increase in inventories of the im-
ports, and
(III) any other circumstances indicating that the
remedial effect of the [countervailing or anti-
dumping] duty order will be seriously under-
mined.
Id. §§ 1671d(b)(4)(A)(ii), 1673d(b)(4)(A)(ii).
If the Commission finds that the surge in imports
is likely to undermine the remedial effect of the coun-
tervailing duty and antidumping orders, duties may be
imposed retroactively. The procedure varies depend-
ing on the facts of any given case, but as relevant here,
Ct. No. 21-00264 Page 4
the duties may apply retroactively “to unliquidated en-
tries of merchandise entered, or withdrawn from ware-
house, for consumption on or after 90 days before the
date on which suspension of liquidation was first or-
dered.” Id. §§ 1671b(e)(2)(A), 1671d(c)(4),
1673b(e)(2)(A), 1673d(c)(4). The mechanism’s purpose
is to prevent clever importers from circumventing im-
pending antidumping and countervailing duties by
rushing in their shipments before the duties take ef-
fect. See H.R. Rep. 96–317, 96th Cong., 1st Sess. at 63
(1979).
II
A
Briggs & Stratton, LLC, is an American producer of
“small vertical shaft engines.” Such engines are typi-
cally used in lawn mowers, pressure washers, and
other outdoor power equipment. Appx2306–2307. In
2020, Briggs & Stratton petitioned the Commission
and Commerce for relief against alleged Chinese
dumping of these engines, which the company as-
serted injured domestic industry.
In response, the Commission opened both anti-
dumping and countervailing duty investigations to de-
termine whether a domestic industry was injured by
imports of such engines from China “that are alleged
to be sold in the United States at less than fair value
and alleged to be subsidized by the Government of
China.” Small Vertical Shaft Engines from China;
Ct. No. 21-00264 Page 5
Institution of Anti-Dumping and Countervailing Duty
Investigations and Scheduling of Preliminary Phase
Investigations, 85 Fed. Reg. 16,958, 16,958 (ITC
Mar. 25, 2020). Commerce likewise found the petition
sufficient to justify launching investigations. Certain
Vertical Shaft Engines Between 99cc and up to 225cc,
and Parts Thereof from the People’s Republic of China:
Initiation of Countervailing Duty Investigation, 85
Fed. Reg. 20,667, 20,667 (Dep’t Commerce Apr. 14,
2020); Certain Vertical Shaft Engines Between 99cc
and up to 225cc, and Parts Thereof from the People’s
Republic of China: Initiation of Less-Than-Fair-Value
Investigation, 85 Fed. Reg. 20,670 (Dep’t Commerce
Apr. 14, 2020). MTD Products Inc., a domestic im-
porter of small vertical shaft engines from China, par-
ticipated in these proceedings before both agencies.
Shortly after the agencies began the investigations,
Briggs & Stratton filed an amended petition alleging
that critical circumstances existed. See Certain Verti-
cal Shaft Engines Between 99cc and up to 225cc, and
Parts Thereof from the People’s Republic of China: Pre-
liminary Affirmative Determination of Critical Cir-
cumstances, in Part, in the Countervailing Duty Inves-
tigation, 85 Fed. Reg. 68,851, 68,851 (Dep’t Commerce
Oct. 30, 2020) (discussing Briggs & Stratton’s critical
circumstances allegation).
B
In both the antidumping and countervailing duty
investigations, Commerce preliminarily found critical
Ct. No. 21-00264 Page 6
circumstances existed as to imports of certain (but not
all) small vertical engines from China. Certain Verti-
cal Shaft Engines Between 99cc and up to 225cc, and
Parts Thereof, from the People’s Republic of China:
Preliminary Affirmative Determination of Sales at
Less Than Fair Value, and Preliminary Affirmative
Determination of Critical Circumstances, in Part, 85
Fed. Reg. 66,932, 66,933 (Dep’t Commerce Oct. 21,
2020) (antidumping duty); 85 Fed. Reg. at 68,851–52
(countervailing duty).
In its final determinations, Commerce continued to
find that critical circumstances existed for imports of
small vertical engines from a group of related entities
known as the “Zongshen Companies” (collectively,
Zongshen) and, in the antidumping duty investigation,
for the China-wide entity. 1 Certain Vertical Shaft En-
gines Between 99cc and up to 225cc, and Parts Thereof,
from the People’s Republic of China: Final Affirmative
Determination of Sales at Less Than Fair Value and
Final Determination of Critical Circumstances, in
Part, 86 Fed. Reg. 14,077, 14,078 (Dep’t Commerce
Mar. 12, 2021) (antidumping duty); Appx1210 (coun-
tervailing duty).
1For an overview of the “country-wide rate” applicable in
non-market economy matters, such as those involving
China, see Hung Vuong Corp. v. United States, 483 F.
Supp. 3d 1321, 1340–41 (CIT 2020).
Ct. No. 21-00264 Page 7
C
For its part, the Commission found “that imports
subject to Commerce’s affirmative critical circum-
stances determinations in the antidumping and coun-
tervailing duty investigations are likely to undermine
seriously the remedial effect of the antidumping and
countervailing duty orders.” Small Vertical Shaft En-
gines from China, 86 Fed. Reg. 22,975, 22,975 n.2 (ITC
Apr. 30, 2021).
In so doing, the Commission cited the statutory
standard and explained that as to “the timing and vol-
ume of the imports,” 19 U.S.C. §§ 1673d(b)(4)(A)(ii)(I)
and 1671d(b)(4)(A)(ii)(I), its “practice is to consider[2]
import quantities prior to the filing of the petition
[that is, pre-petition import quantities] with those sub-
sequent to the filing of the petition [post-petition quan-
tities] using data on the record regarding those firms
for which Commerce has made an affirmative critical
circumstances determination.” Appx3091. The Com-
mission treated November 2019 through March 2020
as the “pre-petition period” and April through August
2020 as the “post-petition period.” Appx3093.
The agency emphasized that there was a surge of
imports during the summer of 2020, “an off-season
portion of the year” during which imports do not nor-
mally increase. Appx3095. “These imports also in-
2 The court presumes the Commission intended this word
to be “compare.”
Ct. No. 21-00264 Page 8
creased relative to apparent U.S. consumption at a
time when consumption was declining, and the vol-
umes associated with the increase were large . . . .”
Appx3095; Appx3099–3100 (same findings as to coun-
tervailing duty order).
The Commission rejected MTD’s argument that
COVID-19 shutdowns artificially depressed pre-peti-
tion import volumes, citing data showing that Zong-
shen exported more small vertical shaft engines to the
United States in January–March 2020—the period for
which MTD cited COVID-related shutdowns—than it
did during the same period in 2019. Appx3096. The
agency also found that Zongshen’s total imports in
June and July 2020 were not just higher than any
month during the pre-petition period—“they were the
largest monthly export volumes to the United States
from . . . Zongshen” over the entire period investigated.
Appx3096–3097; Appx3100 (same findings as to coun-
tervailing duty order).
Finally, the Commission concluded that the in-
creased imports created “a large stockpile of imports
prior to the imposition of provisional duties, at levels
that were higher than all U.S. importers’ annual end-
of-year inventories from 2017 through 2019,” and that
import prices bottomed out during the second and
third quarters of 2020. Appx3097. The result was that
U.S. purchasers had less need to buy small vertical
shaft engines from the domestic engine industry for
the 2021 season. Appx3101. “[W]e find that this mas-
Ct. No. 21-00264 Page 9
sive surge of imports and rapid inventory buildup is
likely to protract the adverse impact of the subject im-
ports on the domestic industry and thereby undermine
seriously the remedial effect of the countervailing duty
order.” Id.; Appx3097–3098 (same conclusion as to an-
tidumping duty order).
D
After the Commission issued its determination that
imports threatened to undermine the remedial effects
of the antidumping and countervailing duty orders,
Commerce issued the orders at issue here. The Depart-
ment imposed antidumping duties on “unliquidated
entries of small vertical engines from China entered,
or withdrawn from warehouse, for consumption on or
after July 23, 2020,” i.e., 90 days before Commerce’s
preliminary determination, as to entries from
Zongshen and the China-wide entity. Certain Vertical
Shaft Engines Between 99cc and up to 225cc, and Parts
Thereof from the People’s Republic of China: Anti-
dumping and Countervailing Duty Orders, 86 Fed.
Reg. 23,675, 23,676 (Dep’t Commerce May 4, 2021).
The countervailing duty portion similarly provided
that as to entries from Chongqing Zongshen General
Power Machine Co.—one of the Zongshen entities—
countervailing duties would be assessed on “unliqui-
dated entries of small vertical engines which are en-
tered, or withdrawn from warehouse, for consumption
on or after May 26, 2020,” i.e., 90 days before Com-
merce’s preliminary determination. Id. at 23,677.
Ct. No. 21-00264 Page 10
III
MTD sued to challenge the Commission’s determi-
nation that the surge in imports threatened to under-
mine the orders’ remedial effect. See generally ECF 4. 3
Briggs & Stratton intervened to defend the Commis-
sion’s determination. ECF 19.
MTD filed the pending motion for judgment on the
agency record. ECF 31 (motion); ECF 41 (brief). The
government (ECF 39, confidential; ECF 40, public)
and Briggs & Stratton (ECF 44) opposed; MTD replied
(ECF 42, confidential; ECF 43, public). The court then
heard argument.
IV
MTD sues under 19 U.S.C. §§ 1516a(a)(2)(A)(i)(II)
and 1516a(a)(2)(B)(i). The court has subject-matter ju-
risdiction via 28 U.S.C. § 1581(c).
In § 1516a(a)(2) actions, “[t]he court shall hold un-
lawful 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). That is, the question is
not whether the court would have reached the same
decision on the same record—rather, it is whether the
3 MTD does not challenge the agencies’ findings about
dumping or countervailable subsidies. Nor does the com-
pany challenge either the dumping or subsidy margins or
Commerce’s critical circumstances determination.
Ct. No. 21-00264 Page 11
administrative record as a whole permits Commerce’s
conclusion.
Substantial evidence has been defined as more
than a mere scintilla, as such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. To determine if substan-
tial evidence exists, we review the record as a
whole, including evidence that supports as well
as evidence that fairly detracts from the sub-
stantiality of the evidence.
Nippon Steel Corp. v. United States, 337 F.3d 1373,
1379 (Fed. Cir. 2003) (cleaned up).
V
MTD raises two theories to challenge the Commis-
sion’s determination that the imports in question were
likely to seriously undermine the remedial effect of the
antidumping and countervailing duty orders. First,
MTD asserts that the agency used faulty data. ECF
41, at 10–19. Second, the company quarrels with how
the Commission weighed the data. Id. at 20–28.
A
MTD contends that the Commission based its de-
termination on (1) “export data subject to significant
lead times,” (2) “incongruous and inaccurate compari-
son periods,” and (3) “artificial apparent increases in
volume due in large part to the Covid-19 pandemic.”
Id. at 10. MTD also argues that in “any case,” the
Ct. No. 21-00264 Page 12
agency (4) “failed to sufficiently explain how these is-
sues impacted the timing and volume of apparent im-
ports, the first statutory criterion under the critical
circumstances analysis.” Id. at 11.
1
The court begins with MTD’s fourth and final con-
tention, which the company barely made in passing in
its opening brief and then fully developed in its reply
as a statutory argument. Compare ECF 41 (opening
brief), at 11, with ECF 43 (reply), at 1–5. While ordi-
narily the court would decline to address an argument
only pressed for the first time on reply, the govern-
ment took the bait and joined the issue in its brief.
ECF 40, at 46. Thus, the court will entertain MTD’s
late-blooming statutory argument.
MTD contends that the Commission’s determina-
tion “must be based on . . . the information expressly
required by the statute—import data. A finding based
on anything else is inherently speculative, suspect,
and unsustainable.” ECF 43, at 3 (emphasis in origi-
nal). As the government argues, however, the Act
simply directs the Commission to “consider” the “fac-
tor” of the “timing and volume of imports” and does not
restrict what data the Commission may consider in so
doing. ECF 40, at 46 (“[I]t is reasonable to interpret
this language as permitting the Commission to con-
sider several key points along the timeline of an im-
port—such as order date, shipment date, export date,
date of importation, or delivery date—as would be
Ct. No. 21-00264 Page 13
relevant under the circumstances of any particular in-
vestigation.”); see also 19 U.S.C. §§ 1673d(b)(4)(A)(ii),
1671d(b)(4)(A)(ii). Nothing in the statute restricts the
Commission’s broad discretion to consider data rea-
sonably relevant to determining the “timing and vol-
ume of imports.” Reinforcing this discretion, the Act
directs the agency to consider—“among other factors it
considers relevant”—“any other circumstances indicat-
ing that the remedial effect of the [orders] will be seri-
ously undermined.” ECF 40, at 46 (emphasis and
brackets the government’s) (quoting 19 U.S.C.
§§ 1671d(b)(4)(A)(ii)(III) and 1673d(b)(4)(A)(ii)(III)).
The court therefore turns to whether the agency’s reli-
ance on the data in question was reasonable.
2
MTD argues that the Commission’s use of Chinese
export data “would not account for the demonstrated
90- to 120[-]day lead times applicable to exports of the
subject merchandise.” ECF 41, at 12. The company
contends that the use of “export data which is subject
to lead times of three-to-four months” could be “prob-
lematic” because portions of the export data would
“likely reflect imports ultimately subject to provisional
measures.” Id. at 12–13. MTD also argues that engine
shipments through July 2020 “reflected purchase com-
mitments under contracts that had been inked in
2019, long before the filing of the Petition.” ECF 43,
at 9. It contends that the company “did not—and as a
practical matter could not—both order and import
such a massive quantity of engines” in the period after
Ct. No. 21-00264 Page 14
Briggs & Stratton filed its petition but before the agen-
cies’ imposition of provisional measures. Id. at 9–10.
The government responds that the Commission
took note that MTD itself “reported that lead times for
imports in 2020 varied widely because of shipment dis-
ruptions related to COVID-19.” ECF 40, at 34. It ar-
gues that because of such variations, “which covered
most of the pre-petition period and all of the post-peti-
tion period, it was reasonable for the Commission to
rely on export data, as export data was not as subject
to variability in shipment times and, therefore, was a
more comparable and reliable data source for evaluat-
ing the timing and volume of any post-petition in-
creases.” Id. at 34–35.
The administrative record shows that the agency
responded to MTD’s argument by calling it “inappo-
site”: “Our critical circumstances data are based on
monthly exports to the United States reported by
[Zongshen], not on monthly U.S. imports, and there-
fore do not reflect shipment times from [Zongshen] . . .
on which the estimated 90 to 120 day produced-to-or-
der lead times are based.” Appx2347 n.256. The Com-
mission also noted that MTD acknowledged placing or-
ders during the spring of 2020 after Briggs & Stratton
filed its petition and that the imports resulting from
those orders “began arriving in the United States in
the May–June period and continued in July and Au-
gust.” Appx2347.
Ct. No. 21-00264 Page 15
The agency thus considered MTD’s arguments and
gave a reasonable explanation for rejecting them
based on the evidence in the record. Under the
substantial evidence standard of review, that suffices.
Although MTD asks the court to re-weigh the
evidence, the standard of review does not allow the
court to do so. See Guangdong Alison Hi-Tech Co. v.
Int’l Trade Comm’n, 936 F.3d 1353, 1365 (Fed. Cir.
2019).
3
MTD argues that the comparison periods the Com-
mission used were inappropriate. The company notes
that Briggs & Stratton filed its petitions on March 18,
2020, and that the agency therefore included March in
the “pre-petition period”: “[T]he Commission used the
entirety of volume data for the months November
2019–March 2020 as the ‘pre-petition’ period and that
for April 2020–August 2020 as the ‘post-petition’ pe-
riod. This resulted in 12 days’ worth of data wrongly
included in the ‘pre-petition’ comparison period, and 7
days incorrectly included in the ‘post-petition’ period.”
ECF 41, at 11.
The agency explained that it chose to place March
2020 in the pre-petition period “in light of the specific
circumstances of these investigations,” Appx2343, be-
cause Briggs & Stratton filed the petitions “towards
the middle of the month,” Appx2343 n.241. The Com-
mission further explained that its choice of August
2020 for the end of the post-petition period was based
Ct. No. 21-00264 Page 16
on Commerce issuing its preliminary determination in
the countervailing duty investigation on August 24,
2020, “within the fifth month of the post-petition pe-
riod we are using here.” Appx2343 n.243. The Commis-
sion referred to its “practice” as being to use the same
pre- and post-petition periods for both the antidump-
ing and countervailing duty matters. Id.The agency thus gave a reasonable explanation for
its choice of pre- and post-petition periods. MTD ad-
mits that it is “unclear exactly how much of the volume
data for each [of] these two months [i.e., March and
August 2020] fall within these erroneously included
periods.” ECF 41, at 11–12. MTD’s arguments about
the time periods leading to erroneous results are
therefore speculative.
4
Finally, MTD argues that the Commission wrongly
based its determination partially on “artificial appar-
ent increases in volume due in large part to the
COVID-19 pandemic.” Id. at 10. The company con-
tends that the agency’s finding that monthly exports
of subject merchandise hit their highest levels of the
period of investigation from April to July 2020—that
is, during the “post-petition” analysis period—was in-
appropriate because of the combination of “lead times”
and the ripple effect of COVID-related production
shutdowns in China between January and March
2020. Id. at 14–15. “[I]t is likely that a substantial por-
tion of the exports reflected in this period would have
Ct. No. 21-00264 Page 17
been ordered prior to the filing of the petitions,” id.
at 15, and MTD contends that the surge in imports
was caused by Chinese manufacturers’ efforts to clear
out a backlog of pending orders, id.The Commission considered MTD’s arguments and
acknowledged that Zongshen was indeed affected by
COVID-related shutdowns in January through March
2020, but the agency found that “those shutdowns did
not appear to affect its exports to the United States”
because those exports “were higher in January
through March 2020 than during the same period in
2019. Thus, to the extent MTD’s argument is that the
increase in the post-petition period is to make up for
exports delayed due to the COVID-19 pandemic, the
record evidence on [Zongshen’s] exports to the United
States contradicts this argument.” Appx2347 (footnote
reference omitted). The Commission also noted that
MTD acknowledged placing orders with Zongshen af-
ter the petition was filed and that those imports ar-
rived in the U.S. during May through August 2020. Id.The record shows that the Commission considered
MTD’s argument, weighed the evidence, and found
that argument unconvincing. The agency’s explana-
tion is reasonable, and the court will not second-guess
its findings.
B
Emphasizing the views of the Commissioner who
partially dissented, see Appx2356 (Separate Views of
Ct. No. 21-00264 Page 18
Commissioner David S. Johanson), MTD challenges
the Commission’s conclusion that imports before the
imposition of provisional relief seriously undermined
the remedial effect of the antidumping and counter-
vailing duty orders. As the company observes, the
Act’s critical circumstances mechanism seeks to pre-
vent accelerated imports from circumventing duty or-
ders. ECF 41, at 20–21. MTD contends, however, that
such is not the situation here because its imports con-
sisted of “custom-made, non-fungible products” which
were not stockpiled and thus were unavailable for
such tactics. Id.The government responds that the Commission
found that Briggs & Stratton was able to produce, and
did produce, small vertical shaft engines suitable for
MTD’s products. ECF 40, at 66 (citing Appx2313–
2314). The government further observes that the Com-
mission determined that even though MTD does not
ordinarily resell small engines from its inventory, “the
additional inventories of imported [small vertical shaft
engines] nevertheless represented orders that the do-
mestic industry did not have an opportunity to obtain.”
Id. (citing Appx2349, Appx2354). In that regard, the
Commission also found that the inventory buildup as-
sociated with the surge in imports meant there would
be less need for power tool manufacturers to purchase
small engines for the next year’s season. Appx2349,
Appx2353–2354.
Ct. No. 21-00264 Page 19
The Commission also noted the unusual timing of
the surge in imports (or Chinese exports) of subject
merchandise during a time of year when such imports
do not normally increase and at a time when U.S. con-
sumption of subject merchandise was apparently de-
clining. Appx2345–2346. The agency placed signifi-
cance on (1) the surge in imports coinciding with the
time of year when domestic purchasers would be nego-
tiating prices for engines to be delivered during the
next year’s lawn mower season and (2) the imports ar-
riving during the surge having among the lowest
prices of any imports during the period of investiga-
tion. Appx2349. The Commission concluded that this
combination of facts demonstrated that the surge of
imports would “protract the adverse impact of the im-
ports subject to the affirmative critical circumstances
finding on the domestic industry and thereby under-
mine seriously the remedial effect of the antidumping
order.” Id.; see also Appx2353–2354 (same analysis for
countervailing duty order).
MTD, however, argues that later events show that
“the remedial effects of the Orders were not, in fact,
seriously undermined by the apparent increase in im-
ports over the post-petition period.” ECF 41, at 22; see
also ECF 43, at 17 (“The remedial effects of the orders
were not seriously undermined”) (point heading), 18
(“MTD submits that . . . the record evidence demon-
strates that the remedial effect of the Orders was not
undermined, seriously or otherwise.”).
Ct. No. 21-00264 Page 20
The statute, however, requires the Commission to
assess whether subject imports “are likely to under-
mine seriously the remedial effect[s]” of the antidump-
ing and countervailing duty orders “to be issued.” 19
U.S.C. §§ 1673d(b)(4)(A)(i) (emphasis added),
1671d(b)(4)(A)(i) (same). In other words, the Commis-
sion makes an informed judgment in advance. The
court need not decide whether the import surge did, in
fact, seriously undermine the orders’ remedial effects
because even if it did not, that fact would not invali-
date the Commission’s finding under the statute.
The Commission amply explained the reasons for
its conclusion that a surge in subject imports
threatened to seriously undermine the duty orders’
remedial effects. And although MTD disputes the
evidentiary sufficiency of those findings, and urges the
court to adopt the dissenting views of Commissioner
Johanson, substantial evidence review does not permit
the court to re-weigh the evidence as MTD proposes.
“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an
administrative agency’s finding from being supported
by substantial evidence.” Siemens Energy, Inc. v.
United States, 806 F.3d 1367, 1372 (Fed. Cir. 2015)
(cleaned up) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)). Although the court agrees
with MTD that the conclusion drawn by Commissioner
Johanson is supported by the record, the conclusion
drawn by the Commission majority—considering the
record as a whole and the evidence that detracts from
Ct. No. 21-00264 Page 21
that conclusion—is also supported by the record.
Under the substantial evidence standard, ties go to the
agency.
* * *
For all these reasons, the court denies MTD’s mo-
tion for judgment on the agency record and grants
judgment on the agency record to the government and
Briggs & Stratton. See USCIT R. 56.2(b). A separate
judgment will issue. See USCIT R. 58(a).
Dated: March 16, 2023 /s/ M. Miller Baker
New York, New York Judge