United States Court of Appeals 

for the Federal Circuit ______________________ 

FULL MEMBER SUBGROUP OF THE AMERICAN 

INSTITUTE OF STEEL CONSTRUCTION, LLC,

Plaintiff-Appellant

v.

UNITED STATES, CORNERSTONE BUILDING 

BRANDS, INC., BLUESCOPE BUILDINGS NORTH 

AMERICA INC., JINHUAN CONSTRUCTION 

GROUP CO., LTD., WISON (NANTONG) HEAVY 

INDUSTRY CO., LTD., SHANGHAI MATSUO STEEL 

STRUCTURE CO., LTD., YANDA (HAIMEN) HEAVY 

EQUIPMENT MANUFACTURING CO., LTD., 

SHANGHAI COSCO KAWASAKI HEAVY 

INDUSTRIES STEEL STRUCTURE CO., LTD., 

MODERN HEAVY INDUSTRIES (TAICANG) CO., 

LTD., DICKERSON ENTERPRISES, INC., STEEL 

CONSTRUCTION GROUP, LLC,

Defendants-Appellees

EXXONMOBIL CHEMICAL COMPANY, A DIVISION 

OF EXXON MOBIL CORPORATION, GULF COAST 

GROWTH VENTURES, LLC,

Defendants

______________________ 

2022-1176

______________________ 

Appeal from the United States Court of International 

Trade in No. 1:20-cv-00090-CRK, Judge Claire R. Kelly.

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2 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

______________________ 

Decided: September 7, 2023

______________________ 

THOMAS M. JOHNSON, JR., Wiley Rein, LLP, Washington, DC, argued for plaintiff-appellant. Also represented 

by STEPHEN JOSEPH OBERMEIER, ALAN H. PRICE, ADAM 

MILAN TESLIK, ENBAR TOLEDANO, CHRISTOPHER B. WELD. 

 JOHN DAVID HENDERSON, Office of General Counsel, 

United States International Trade Commission, Washington, DC, argued for defendant-appellee United States. Also 

represented by ANDREA C. CASSON. 

 DANIEL MARTIN WITKOWSKI, Akin Gump Strauss 

Hauer & Feld LLP, Washington, DC, argued for defendantappellees Cornerstone Building Brands, Inc., BlueScope 

Buildings North America Inc., Jinhuan Construction 

Group Co., Ltd., Wison (Nantong) Heavy Industry Co., 

Ltd., Shanghai Matsuo Steel Structure Co., Ltd., Yanda 

(Haimen) Heavy Equipment Manufacturing Co., Ltd., 

Shanghai Cosco Kawasaki Heavy Industries Steel Structure Co., Ltd., Modern Heavy Industries (Taicang) Co., 

Ltd., Dickerson Enterprises, Inc., Steel Construction 

Group, LLC. Cornerstone Building Brands, Inc., also represented by MATTHEW R. NICELY. 

 DANIEL L. PORTER, Curtis, Mallet-Prevost, Colt & 

Mosle LLP, Washington, DC, for defendant-appellee 

BlueScope Buildings North America Inc. Also represented 

by JAMES BEATY, CHRISTOPHER A. DUNN. 

 NED H. MARSHAK, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York, NY, for defendantsappellees Jinhuan Construction Group Co., Ltd., Wison 

(Nantong) Heavy Industry Co., Ltd., Shanghai Matsuo 

Steel Structure Co., Ltd., Yanda (Haimen) Heavy 

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FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 3

Equipment Manufacturing Co., Ltd., Shanghai Cosco Kawasaki Heavy Industries Steel Structure Co., Ltd., Modern 

Heavy Industries (Taicang) Co., Ltd., Dickerson Enterprises, Inc., Steel Construction Group, LLC. Also represented by MAX F. SCHUTZMAN; JORDAN CHARLES KAHN, 

Washington, DC. 

 ______________________ 

Before REYNA, BRYSON, and CUNNINGHAM, Circuit Judges.

REYNA, Circuit Judge. 

Appellant appeals from the judgment of the United 

States Court of International Trade that affirms a final 

negative determination reached by the United States International Trade Commission in an antidumping duty investigation. On March 1, 2020, the Commission issued a 

final negative determination that the U.S. (domestic) fabricated structural steel (“FSS”) industry was not materially 

injured or threatened with material injury by reason of 

sales in the United States of certain FSS imports from, 

among other countries, China. Appellant appealed to the 

Court of International Trade, raising three principal issues: (1) that the Commission erred by declining to resolve 

a purported ambiguity in the scope of the investigation in 

view of the parties’ dispute, (2) that the Commission legally 

erred in its determination that the captive production exception in 19 U.S.C. § 1673d(b)(1)(A)(i) did not apply in the 

investigation, and (3) that the Commission erred in its

price effects analysis under 19 U.S.C. § 1677(7)(C)(ii). The 

Court of International Trade upheld the Commission’s final negative determination, and Appellant appealed to this 

court. We conclude that the Commission’s determination 

as to the issues raised on appeal is reasonable, supported 

by substantial evidence, and in accordance with the law. 

On that basis, we affirm the judgment of the Court of International Trade.

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4 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

BACKGROUND

Appellant, Full Member Subgroup of the American Institute of Steel Construction, LLC (“AISC”), is an association of U.S. producers and manufacturers of fabricated 

structural steel (“FSS”) products. In February 2019, AISC 

filed antidumping duty petitions before the United States

International Trade Commission (“Commission”) and the 

United States Department of Commerce (“Commerce”), alleging unfair trade practices involving the importation and 

sales in the United States of FSS from Canada, China, and 

Mexico. See [FSS] from Canada, China, & Mexico, USITC 

Inv. Nos. 701-TA-615 and 701-TA-616 (Mar. 1, 2019).1 This 

1 In general, antidumping duty investigations are 

commensurately, but separately, conducted by Commerce 

and the Commission. The object of Commerce’s investigation is to determine the extent to which imports of the 

goods under investigation are sold in the United States at 

less than fair value, i.e. “dumped.” See Cleo Inc. v. United 

States, 501 F.3d 1291, 1294 (Fed. Cir. 2007). An early task 

of Commerce is to define the goods, or merchandise, that 

are subject to its investigation, the “subject merchandise.” 

See Pesquera Mares Australes Ltda. v. United States, 266 

F.3d 1372, 1374–75, 1374 n.2 (Fed. Cir. 2001); see also 19 

U.S.C. § 1677(25). 

The Commission does not investigate whether sales are 

at less than fair value. Rather, the Commission investigates whether a U.S. industry that produces goods or products that are like the products under investigation by 

Commerce (these products are referred to as “domestic like 

product”) are materially injured or threatened with material injury. Cleo, 501 F.3d at 1294–95. 

Central to both investigations, and this appeal, are the 

agencies’ respective definitions or identification of the 

products under their respective investigation. These 

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FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 5

appeal only involves the investigation on FSS imports from 

China. 

On February 4, 2019, the Commission initiated its preliminary phase of its investigation. See Institution Notice 

for [FSS] From Canada, China, & Mexico, 84 Fed. Reg. 

3245 (Int’l Trade Comm’n Feb. 11, 2019). The period of investigation was set for January 2015 through September 

2018. [FSS] from Canada, China, & Mexico, Investigation 

Nos. 701-TA-615-617 and 731-TA-1432-1434 (Prelim.) at 

12, USITC Pub. 4878, (Mar. 2019). The Commission issued 

questionnaires to, among other entities, the AISC membership, other domestic producers, U.S. importers, and Chinese producers and manufacturers, seeking information 

and data related to production, shipment, consumption, 

and pricing of products under investigation during the period of investigation. 

determinations are critical because they define both the 

scope of the investigations and the scope of any resulting 

trade relief, such as the assessment of antidumping duties. 

See, e.g., 19 C.F.R. § 351.202(b)(5) (“[T]he subject merchandise . . . defines the requested scope of the investigation.”); 

19 U.S.C. § 1675(a)(2)(C) (“The determination under this 

paragraph shall be the basis for the assessment of countervailing or antidumping duties on entries of merchandise 

covered by the determination and for deposits of estimated 

duties.”); Hitachi Metals, Ltd. v. United States, 350 F. 

Supp. 3d 1325, 1341 (Ct. Int'l Trade 2018), aff'd, 949 F.3d 

710 (Fed. Cir. 2020) (“Commerce’s scope rulings assess factors in relation to the foreign like product and subject merchandise produced in the country(ies) subject to 

investigation, whereas the [Commission’s] domestic like 

product determinations assess factors in relation to the 

production and sale of domestic like product by the domestic industry.”). 

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6 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

The Commission received questionnaire responses 

providing trade and commercial data, composed of proprietary and business confidential material. See [FSS] from 

Canada, China, & Mexico, USITC Inv. Nos. 701-TA-615 

and 701-TA-616, at *5 (Mar. 1, 2019). 

During the preliminary phase of the investigation, the

interested parties in the investigation addressed issues 

pertinent to the methodologies they used for reporting the 

data, as well as comment and argument regarding the 

Commission’s analysis and treatment of the data. For example, AISC requested that the Commission adopt a domestic like product determination that was coextensive 

with the subject merchandise definition adopted by Commerce, which expressly excluded pre-engineered metal 

building systems, or “PEMBs.”2 J.A. 120–21. 

Relevant to this appeal, AISC also argued for the Commission to disregard certain data provided by two U.S. producers. According to AISC, NCI Group, Inc. (“NCI”) and 

BlueScope Buildings North America, Inc. (“BlueScope”)

submitted information for products that were not

2 Commerce defined the subject merchandise scope

as “carbon and alloy” FSS that “have been fabricated for 

erection or assembly into structures, including, but not limited to, buildings.” J.A. 2495–96. Commerce’s subject merchandise determination provided several categories of 

exclusions, such as completed PEMBs. J.A. 2496; J.A. 

8363–64. 

For purposes of this appeal, PEMBs are “defined as 

complete metal buildings that integrate steel framing, roofing and walls to form one, pre-engineered building system 

and are designed and manufactured to [meet] Metal Building Manufactures Association guide specifications.” J.A. 

111. PEMBs “are typically limited in height to no more 

than 60 feet or two stories.” Id. 

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“domestic like products” and thus should be rejected by the 

Commission. J.A. 8331–33 & n.47. AISC argued, in the 

alternative, that to the extent that the data were not rejected, the NCI and BlueScope data should be excluded under the captive production provision set out in 19 U.S.C. 

§ 1677(7)(C)(iv). J.A. 8800 & n.180. 

On January 30, 2020, Commerce reached a final affirmative determination, concluding that FSS from China 

was sold in the United States at less than fair value. Certain [FSS] from [China], 85 Fed. Reg. 5376, 5379 (Dep’t of 

Commerce Jan. 30, 2020). 

On March 1, 2020, the Commission issued the final 

negative determination, concluding that the domestic FSS 

industry was not materially injured or threatened with material injury by imports of subject FSS from China. [FSS] 

from Canada, China, & Mexico, USITC Inv. No. 701-TA616 (Mar. 1, 2020).3 The Commission reached the following 

determination relevant to this appeal.

First, the Commission took steps to exclude purportedly out-of-scope domestic industry data provided by NCI

and BlueScope. J.A. 8418 n.304. Second, the Commission 

determined that the captive production provision was inapplicable because there was no “production of a downstream article,” as required by the statute. J.A. 8800–8801. 

And third, the Commission determined that “[t]he record 

consequently does not support a finding that the subject 

imports significantly undersold the domestic like product.” 

J.A. 8415. The Commission also concluded that there was 

“no evidence of price depression on th[e] record.” Id. 

AISC appealed the Commission’s final negative determination to the United States Court of International Trade 

(“Court of International Trade”). Full Member Sub. of the 

3 Three Commissioners voted in the negative and 

two Commissioners voted in the affirmative. 

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8 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

Am. Inst. of Steel Constr., LLC v. United States, 547 F. 

Supp. 3d 1211 (Ct. Int’l Trade 2021). On appeal before the 

Court of International Trade, AISC moved for judgment on 

the agency record based on four arguments: that the Commission erred by (1) failing to exclude NCI and BlueScope 

domestic industry data related to PEMB material, (2) determining that the captive production provision is inapplicable, (3) failing to seek out additional pricing product 

data, and (4) concluding that there were no significant 

price effects by FSS imports. Id. at 1218–31. 

In September 2021, the Court of International Trade 

sustained the Commission’s final negative determination. 

Id. at 1233. AISC timely appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(5).

STANDARD OF REVIEW

We review de novo the Court of International Trade’s 

judgments on the agency record. Timken U.S. Corp. v. 

United States, 421 F.3d 1350, 1354 (Fed. Cir. 2005). In doing so, we apply the same standard of review applied by the 

Court of International Trade when it reviews the Commission’s antidumping determinations. Zhejiang Mach. Imp. 

& Exp. Corp. v. United States, 65 F.4th 1364, 1369 (Fed. 

Cir. 2023). As such, we review whether the Commission’s 

determination is supported by substantial evidence or otherwise not in accordance with the law. Siemens Energy, 

Inc. v. United States, 806 F.3d 1367, 1369 (Fed. Cir. 2015). 

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (cleaned up). 

DISCUSSION 

On appeal, AISC argues that the Commission erred by

(1) declining to resolve a purported ambiguity in the definition of the domestic like product scope, (2) determining

that the captive production exception is not applicable, and 

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FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 9

(3) concluding that there were no significant price effects 

by FSS imports. 

I. Domestic Like Product

We first address AISC’s argument concerning the Commission’s domestic like product determination. AISC 

frames this issue as “[w]hether the Commission lawfully 

declined to resolve an ambiguity in the definition of the domestic like product.” Appellant Br. 2. Specifically, AISC 

asserts that the Commission is required “to resolve 

whether disputed products in fact met the definition of the 

domestic like product.” Reply Br. 2. AISC further argues 

that the Commission must “articulate a reason for any such 

determination” and that the Commission erroneously 

failed to do so in this case. Id. 

The domestic like product determination is critical to

the framework of antidumping duty investigations. The 

statute charges the Commission with determining whether 

a domestic industry is materially injured or threatened 

with material injury by reason of imports sold in the 

United States at less than fair value. 19 U.S.C. § 1671(a). 

To do so, the Commission investigates the economic and 

commercial health of a domestic industry, defined as “producers as a whole of a domestic like product.” Id. 

§ 1677(4)(A). The statute defines “domestic like product” 

as a product “which is like or . . . most similar in characteristics and uses with, the article subject to an investigation.” 

Id. § 1677(10). Consequently, whether a U.S. producer is a 

member of the pertinent domestic industry is determined 

on the basis of whether it produces a domestic like product. 

If it does, then the Commission typically seeks data from 

that company to assist it in gauging whether the domestic 

industry is injured. If a company does not produce a domestic like product, then it is not part of the relevant domestic industry, and its data is not used in the 

investigation. See Pokarna Engineered Stone Ltd. v. 

United States, 56 F.4th 1345, 1348 (Fed. Cir. 2023) (“The 

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10 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

term ‘industry’ is defined in the statute as ‘the producers 

. . . of a domestic like product, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of the 

product.’ 19 U.S.C. § 1677(4)(A).”). To be clear, the Commission does not decide which products or merchandise are 

subject to the investigation, that task belongs to Commerce. 

See supra note 1. 

The foregoing is important to understand because 

AISC’s arguments are directed to both the domestic like 

product and the subject merchandise determinations. Specifically, AISC frames its argument in terms of the Commission’s determination related to the domestic like 

product, see Appellant Br. 22–28, but the core issue AISC 

raises is more appropriately framed in terms of Commerce’s determination related to the subject merchandise. 

First, AISC argues that the Commission is legally obligated to redefine the like product definition whenever a 

dispute arises about whether a product in fact meets the

domestic like product definition. Appellant Br. 2; Reply Br. 

2. AISC asserts that in addition to redefining the domestic

like product, the Commission is obligated to articulate a 

reason for why any disputed product does or does not fall 

within the domestic like product scope. Appellant Br. 27; 

Reply Br. 2. AISC claims that the Commission erred by not 

addressing an “ambiguity” in the domestic like product definition because “[i]t does not follow . . . that every piece of 

fabricated steel in a structure is necessarily fabricated 

structural steel.” Appellant Br. 28 (citations omitted) (emphasis in original). 

We observe that the Commission is not obligated as a 

matter of law to expressly redefine its domestic like product determination simply because a party disputes whether 

a particular product falls within the definition. See Hitachi 

Metals, Ltd. v. United States, 949 F.3d 710, 717 (Fed. Cir. 

2020) (concluding that Commission was not “required to 

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compare tool steel to products outside of Commerce’s subject merchandise determination”); cf. Rules of Practice and 

Procedure, 63 Fed. Reg. 30,599, 30,602 (Int’l Trade 

Comm’n, June 5, 1998) (“[T]he Commission may revisit its 

like product determination when there have been significant changes in the products at issue since the original investigation.”). Nor does a purported “ambiguity” require 

the Commission to modify the domestic like product scope

to expressly articulate whether a single or multiple goods 

are included or excluded from the scope. AISC identifies 

no regulation, law, or precedent to the contrary—and we 

find none. 

Second, we conclude that the focus of AISC’s argument 

is not the domestic like product definition, but rather the

subject merchandise scope. Indeed, AISC concedes that it 

does not challenge the domestic like product definition on 

appeal. Reply Br. 2 (“Nor does AISC take issue with the 

Commission’s defining the domestic like product coextensively with the scope, thereby challenging an issue as to 

which AISC prevailed below.”). As a result, we do not address whether the domestic like product definition itself is 

defective or otherwise ambiguous. 

AISC further argues that the Commission’s determination is infirm and should be reversed because the Commission included in its investigation certain information and 

data pertaining to products that did not meet the domestic 

like product definition. See Appellant Br. 25–26. AISC argues that the Commission failed to resolve its argument 

during the investigation or to articulate the resolution of 

the issue in its final determination. Id. at 26. We disagree. 

AISC asserts that the Commission should not have

sought and received information and data from two U.S. 

companies: NCI and BlueScope. According to AISC, the 

NCI and BlueScope submissions included “significant volumes of non-subject merchandise in their data.” Id. at 15. 

AISC asserts that NCI “reported data for complete PEMBs, 

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12 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

which are expressly out-of-scope, and both NCI and 

BlueScope appeared to have reported data for substantial 

volumes of non-FSS components of PEMBs (meaning [fabricated] steel that was used in a PEMB[], but which AISC 

did not believe met the criteria for the domestic like product).” Id. (emphasis added). AISC notes that the PEMB 

components at issue on appeal, e.g., insulated metal panels, roof panels, and trim, “were never contemplated as 

FSS” by the Commission or the parties. Reply Br. 4. 

The record belies AISC’s argument. As to the purported “complete PEMBs” in NCI and BlueScope’s data, 

AISC’s argument hinges on equating “complete PEMBs”—

which are the completed buildings—with PEMB kits. J.A. 

3741. We disagree with that premise. The Commission 

concluded that PEMB kits are in scope, and thus were permissibly included in NCI and BlueScope’s data. J.A. 8774–

76. The record reflects that NCI and BlueScope accordingly did not include complete PEMBs in their data, only 

kits. See, e.g., J.A. 8801 & nn.186–87; J.A. 3132; J.A. 5345; 

J.A. 3429

As to the non-structural FSS, the record again runs 

counter to AISC’s argument on appeal. At Commerce, 

AISC’s proposed definition of subject merchandise prevailed. Commerce defined the subject merchandise scope 

as “carbon and alloy” FSS that “have been fabricated for 

erection or assembly into structures, including, but not limited to, buildings.” J.A. 2495–96. Other parties argued 

that the FSS scope should be limited to FSS that only “provide structural support” and “can bear certain loads or 

weight.” J.A. 5135. AISC disagreed with that narrowing, 

arguing that “the scope was not intended to cover only FSS 

that becomes the structure” or that are “essential to support the design loads of the structure,” i.e., load bearing. 

Id. Commerce agreed with AISC. It concluded that the 

subject merchandise scope had “no limitations regarding 

whether or not the FSS is essential to support the design 

loads of the structure.” J.A. 5136. As a result, non-load 

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bearing FSS was included within the subject merchandise 

scope. This matters because, per AISC’s request, the Commission defined the domestic like product as coextensive 

with the subject merchandise determination. Thus, a decision by the Commission that non-load bearing FSS was 

within the domestic like product scope is supported by substantial evidence and in accordance with the law. 

The record also supports the government’s argument

that the Commission did not consider out-of-scope data in 

coming to its final determination, and that the Commission’s domestic like product determination was supported 

by substantial evidence. See Appellee Br. 18–24. The 

Commission conducted a thorough and detailed investigation, including with respect to its domestic like product determination. For example, it issued domestic producer 

questionnaires to 495 firms and reviewed over 100 questionnaires from domestic producers. J.A. 7969; J.A. 8821–

22 n.304. It issued importer questionnaires to 245 firms 

believed to be importers of FSS. J.A. 7910. The Commission issued a preliminary determination, providing its preliminary analysis of the data and its preliminary domestic 

like product scope. J.A. 2167–2200; J.A. 2173 (noting that 

AISC argues the domestic like product scope should be coextensive with Commerce’s subject merchandise scope). 

Before coming to its final determination, the Commission 

considered AISC’s concerns regarding the out-of-scope data 

by seeking additional information from producers, J.A. 

6612–13; J.A. 8521 n.9, providing instructions on how data 

should be reported, see, e.g., J.A. 5883–87, and then reviewing that data to ensure they did not include out-of-scope 

products, J.A. 8821–22 n.304. This record demonstrates 

that the Commission’s investigation was thorough, and 

that its domestic like product determination is supported 

by substantial evidence. 

The Commission’s domestic like product analysis is 

also in accordance with the law. The Commission—as required by statute, 19 U.S.C. § 1677(10)—properly 

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considered Commerce’s “subject merchandise” determination as the starting point of its domestic like product analysis. Hitachi, 949 F.3d at 717 (“The statute requires the 

Commission to consider Commerce’s subject merchandise 

determination in reaching its own like product determination.”); see, e.g., J.A. 8765–71; J.A. 8822 n.304. It then conducted the required six-factor inquiry set out in Cleo Inc. v. 

United States, 501 F.3d 1291, 1294–95, 1298 (Fed. Cir. 

2007) to evaluate whether the subject FSS corresponds

with a single domestic like product or multiple domestic 

like products. J.A. 8773–80. Based on Commerce’s scope 

and the Cleo inquiry, the Commission similarly concluded 

that “FSS components of PEMBs” are in scope, and “complete PEMBs” are “excluded from the scope.” J.A. 8774. In 

support of these findings, the Commission relied on evidence related to how FSS and FSS components of PEMBs 

are produced, J.A. 8775, how they are distributed (e.g., in 

kits), J.A. 8776, and how they are priced, id. 

Finally, we are not persuaded that the Commission relied on inconsistent data that corrupted its investigative 

database. Appellant Br. 2. AISC vaguely contends that 

the Commission considered “non-structural PEMB components,” id. at 24, yet does not identify what those precise 

components are or which data it is referring to. AISC contends that it “did not believe [these components] met the 

definition of fabricated structural steel.” Id. (emphasis in 

original). To the extent that AISC is referring to non-load 

bearing FSS, that argument fails for the reasons articulated above. Otherwise, its mere belief overturns neither

the Commission’s thorough investigation nor its analysis 

and conclusion, which the record establishes is supported 

by substantial evidence and in accordance with the law. 

For the above reasons, we hold that the Commission’s 

domestic like product determination was reasonable, supported by substantial evidence, and in accordance with the

law. We find nothing on this record that suggests that the 

Commission declined to address the issue, or that the 

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Commission was obligated in this case to redefine the domestic like product scope merely in light of the parties’ disagreement. 

II. Captive Production Provision

We turn to AISC’s argument that the Commission 

erred in determining that the captive production provision 

under 19 U.S.C. § 1677(7)(C)(iv) is inapplicable. According 

to AISC, the captive production provision applies because 

“PEMB producers ‘internally transferred’ significant quantities of FSS to make PEMBs,” which are downstream articles. Appellant Br. 30. We are not persuaded. 

Section 1677(7)(C)(iv) provides that:

If domestic producers internally transfer significant production of the domestic like product for the 

production of a downstream article and sell significant production of the domestic like product in the 

merchant market, and the Commission finds 

that— 

(I) the domestic like product produced that 

is internally transferred for processing into 

that downstream article does not enter the 

merchant market for the domestic like 

product, and

(II) the domestic like product is the predominant material input in the production 

of that downstream article,

then the Commission, in determining market share 

and the factors affecting financial performance set 

forth in clause (iii), shall focus primarily on the 

merchant market for the domestic like product.

Generally, the Commission considers the state of the

domestic industry as a whole in its injury analysis. See 19 

U.S.C. § 1673d(b)(1)(A)(i). An exception to this rule is the 

captive production provision, which provides that, if 

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certain conditions are met, the Commission must “focus 

primarily on the merchant market for the domestic like 

product” when determining market share and assessing

economic factors. See 19 U.S.C. § 1677(7)(C)(iv). The captive production provision addresses situations in which 

U.S. producers internally transfer a significant volume of 

the domestic like product for further internal processing 

into a separate, distinct downstream article. See id. The 

rationale is that internally transferred domestic like products neither compete with, nor are injured by, the imported 

merchandise subject to the investigation. When this provision applies, the Commission’s investigation excludes pertinent data received from a producer that internally 

consumes its domestic like product to create a downstream 

product. See id. 

A downstream article is an article distinct from the domestic like product but that is produced from the domestic 

like product. See Uruguay Round Agreements Act: Statement of Administrative Action, H. Doc. 103–316, at 852–53

(1994) (“SAA”).4 Thus, the captive production provision 

does not apply where both domestic like product and the 

purported downstream article both fall within the domestic 

like product scope. See id. 

We conclude that the Commission correctly determined 

that the captive production provision does not apply here. 

The Commission reasonably determined that complete 

4 The SAA is an authoritative expression concerning 

the interpretation and application of the Uruguay Round 

Agreements Act. 19 U.S.C. § 3512(d); see Oral Arg. 29:55–

30:21; see also Uruguay Round Agreements Act: Statement 

of Administrative Action, H. Doc. 103–316, at 656 (1994) 

(“[S]ince this Statement will be approved by the Congress 

at the time it implements the Uruguay Rounds agreements, the interpretations of those agreements included in 

this Statement carry particular authority.”); J.A. 26 n.15. 

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PEMBs are fully assembled buildings that are out-of-scope, 

whereas PEMB kits containing FSS components of PEMBs 

that are later assembled into complete PEMBs are in scope. 

See, e.g., J.A. 8371; J.A. 8398; J.A. 8801. Because both FSS 

components of PEMBs and PEMB kits are within the domestic like product scope, see, e.g., J.A. 8371; J.A. 8398; 

J.A. 8801, neither can qualify as a downstream article under the captive production provision, SAA at 852–53. The 

only product that could qualify as a downstream article is 

the complete PEMB, which is out of scope. Accordingly, as 

AISC concedes, for the captive production provision to apply here, the producer that produces FSS components of 

PEMBs (or PEMB kits) must also internally transfer and 

process those domestic like products to produce the complete PEMB. See Appellant Br. 30–31. A “producer” must 

have sufficient product-related activities such that it has a 

“stake,” e.g., it actually makes the product in the domestic 

industry at issue. Pokarna, 56 F.4th at 1350–51. 

 Those circumstances, however, do not exist here. NCI 

and BlueScope are both FSS and PEMB-kit producers. See, 

e.g., J.A. 8334. But they do not assemble the PEMB kits 

into complete PEMBs. Rather, the record establishes that 

unrelated third parties assemble the FSS components from 

the PEMB kits to make a building—the complete PEMB. 

J.A. 8801 & nn.186–87; J.A. 3132; J.A. 5345; J.A. 3429. 

These third-party builders are therefore complete-PEMB 

producers. See J.A. 5345–46 (referring to builders of 

PEMB kits as “PEMB builders”). Thus, the Commission 

properly concluded that the aggregation of components into 

PEMB “kits,” without assembly by a third-party builder to 

make a complete PEMB, is neither an “internal[] transfer” 

nor the “production of a downstream article” within the 

meaning of the captive production under the statute. J.A. 

8397–98 & n.180 (citing 19 U.S.C. § 1677(7)(C)(iv)). 

For these reasons, we are unpersuaded by AISC’s argument that “the Commission’s construction of the statute 

was arbitrary and not supported by the statute’s plain 

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language” because “the statute imposes no limit on who, in 

the internal transfer chain, must perform the final production/assembly, nor would such a limitation make sense.” 

Appellant Br. 34. We find no such ambiguity. The SAA is 

clear on this issue. The term “internally transfer[red]” for 

the “production of a downstream article” is defined to mean 

“processed into a higher-valued downstream article by the 

same producer.” SAA at 852 (emphasis added). Because 

FSS components of PEMBs, PEMB kits, and complete 

PEMBs are not made by the same producer, there is no internal transfer as required by the captive production provision.

AISC also argues that “the Commission’s determination undermines the statute’s clear purpose” when it “fixated arbitrarily on the word ‘production.’” Appellant Br. 

33–34. This argument is forfeited because it was not made 

before the Court of International Trade. Full Member Subgroup of Am. Inst. of Steel Constr., LLC v. United States, 

547 F. Supp. 3d 1211, 1225 (Ct. Int’l Trade 2021) (“[AISC]

does not contend that the threshold condition is unambiguous or that the Commission’s construction of the threshold condition is contrary to the clear intent of Congress.”). 

Absent exceptional circumstances, we will not consider forfeited arguments on appeal. In re Google Tech. Holdings 

LLC, 980 F.3d 858, 863 (Fed. Cir. 2020). AISC offers no 

argument that exceptional circumstances exist here. 

We also find unpersuasive AISC’s argument that the 

Commission’s purported inconsistent labeling of certain 

parties as PEMB producers resulted in a final determination that is unsupported by substantial evidence and not in 

accordance with the law. AISC points to the preliminary 

investigation where the Commission generically referred to 

both PEMB-kit producers and FSS-of-PEMB-components 

producers as “PEMBs producers.” Appellant Br. 33. But 

there is no dispute that the entities the Commission referenced were not the actual builders that assembled the kits 

to construct the complete buildings. The Commission’s 

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determination in this regard is supported by substantial 

evidence. 

For the above reasons, we hold that the Commission’s 

determination that the captive production provision is inapplicable is supported by substantial evidence and in accordance with the law. 

III. Price Effects

AISC argues on appeal that the Commission erred in 

its determination that the record does not support a finding 

that imports of FSS from China significantly undersold the 

domestic like product, or depressed prices of the domestic 

like product under 19 U.S.C. §§ 1677(7)(C)(ii)(I)–(II). Appellant Br. 32, 38; J.A. 8410–15. 

In evaluating the price effects of subject imports, the 

Commission assesses the impact on domestic like product 

prices by first establishing whether “there has been significant price underselling by the imported merchandise as 

compared with the price of the domestic like products.” 19 

U.S.C. § 1677(7)(c)(ii)(I). If the Commission finds there is 

significant underselling, it must consider whether “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. § 1677(7)(c)(ii)(II).

According to AISC, the Commission should have compared initial and final itemized bid data from purchasers 

and producers instead of relying on pricing data of FSS. 

Appellant Br. 37–38. AISC claims that where prices were 

not itemized, the Commission should have collected bid

data from the FSS fabricators. Id. AISC contends that the 

Commission’s failure to obtain this information rendered 

the record inadequate and hobbled the Commission’s analysis, and as a result, the determination is unsupported by 

substantial evidence. Id. at 40. Alternatively, AISC argues 

that even on the existing record, the Commission’s price 

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20 FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US

effects determination is not supported by substantial evidence. Id. at 43–55. 

Specifically, AISC contends that the Commission failed 

to consider the entirety of the record, and if it had, it would 

have found significant underselling and price depression. 

Id. at 43–48, 54. AISC claims that any limitation posed by

any single data source alone (e.g., total bid data, average 

unit values (“AUV”) data, non-FSS component bid data) 

could be overcome by weaving together all the various data 

to find significant underselling. Id. at 47. We are not persuaded. 

The Commission was not obligated to collect the additional data that AISC points to, especially because the 

Commission found that data unreliable and unhelpful to 

the price effects inquiry. Once the Commission satisfies its 

obligation to conduct investigative activities under 19 

C.F.R. § 207.20(b),5 a decision not to collect additional 

5 The regulation states: 

The Director shall circulate draft questionnaires for the final phase of an investigation to parties to the investigation 

for comment. Any party desiring to comment on draft questionnaires shall submit such comments in writing to the 

Commission within a time specified by 

the Director. All requests for collecting 

new information shall be presented at 

this time. The Commission will disregard subsequent requests for collection 

of new information absent a showing 

that there is a compelling need for the 

information and that the information 

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information does not alone render the Commission’s final 

determination unsupported by substantial evidence. See

Hitachi, 949 F.3d at 718–19. “The Commission does indeed 

enjoy discretion to conduct its investigation and gather 

data it deems relevant.” Allegheny Ludlum Corp. v. United 

States, 287 F.3d 1365, 1373 (Fed. Cir. 2002). But “[t]here 

is no statutorily designated minimum standard that requires a particular degree of thoroughness in the Commission’s investigation.” LG Elecs., Inc. v. U.S. Int’l Trade 

Comm’n, 26 F. Supp. 3d 1338, 1348 (Ct. Int’l Trade 2014). 

Moreover, “[i]t is not for this court on appeal to reweigh the 

evidence or to reconsider questions of fact anew.” Trent 

Tube Div., Crucible Materials Corp. v. Avesta Sandvik Tube 

AB, 975 F.2d 807, 815 (Fed. Cir. 1992). And “[e]ven if it is 

possible to draw two inconsistent conclusions from evidence in the record” this does not necessarily mean that the 

Commission’s determination is unsupported by substantial 

evidence. Am. Silicon Techs. v. United States, 261 F.3d 

1371, 1376 (Fed. Cir. 2001). 

We hold that the Commission’s price effects analysis 

was reasonable and supported by substantive evidence. After considering product data, overall bid data, itemized bid 

data, AUV data, and lost sales, the Commission determined that “[t]he record consequently does not support a 

finding that the subject imports significantly undersold the 

domestic like product.” J.A. 8415. The Commission first 

found that most FSS is sold in a multi-stage competitive 

bidding process. J.A. 8404. But the Commission ultimately determined, after requesting additional data, that 

overall and itemized bid data for these bidding processes 

was not reliable for several reasons. First, “while there is 

some correlation between the lowest total bidder and . . . 

could not have been requested in the 

comments on the draft questionnaires.

19 C.F.R. § 207.20(b). 

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the successful bidder, lowest total bids do not always win 

the sale.” J.A. 8410. Second, “the available data concerning total bids do not provide sufficient information to permit [the Commission] to make a conclusion about the 

relative price levels of the domestic and subject FSS included in the bids.” Id. Third, it is not possible to “conclude 

that differences in total bid values necessarily reflect differences in the value of FSS included in the bid.” J.A. 

8411–12. This is primarily because purchasers do not receive itemized bids that permit assessing the value of any 

standalone FSS. Id. 

The Commission also concluded that there was “no evidence of price depression on th[e] record.” J.A. 8415. The 

Commission considered AUVs, cost of goods sold (“COGS”), 

and raw material costs, but found each data set provided 

insufficient support to establish price depression. J.A. 

8415–17. For example, AUV data showed higher shipments and net sales within the domestic industry. J.A. 

8415. As to COGS, the data suggested that “the industry’s 

revenues increased by more than its COGS on both an overall and per-unit basis.” J.A. 8415–16. And on raw materials, “the domestic industry as a whole was able to pass on 

the vast majority of its increases in raw material costs.” 

J.A. 8417. These findings are supported by substantial evidence of no significant underselling and price depression

and inform the reasonableness of the conclusion of no injury. We decline AISC’s invitation to reweigh the Commission’s factual findings. 

We hold that the Commission satisfied its obligation

under 19 C.F.R. § 207.20(b) to conduct investigative activities and to collect data necessary to conduct its analysis 

under the statute. It issued questionnaires and sought 

comment and argument on the best method to evaluate the 

pricing of the domestic like product. J.A. 8407–08. It then 

weighed the evidence it received, determined that the additional evidence promoted by AISC would not provide better clarity, and determined that the evidence did not 

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FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 23

support a finding of significant underselling or price suppression. J.A. 8408. “It is of course well within the [Commission’s] discretion to discount or dismiss incomplete or 

unreliable data.” Chr. Bjelland Seafoods A/S v. United 

States, 19 C.I.T. 35, 54 n.22 (1995). On this record, the 

Commission’s refusal to seek out additional data as requested by AISC was reasonable and supported by substantial evidence. 

The remainder of AISC’s arguments are at their core 

requests for this court to reweigh the evidence, which is 

outside this court’s purview. See Trent Tube, 975 F.2d at

815; see also Am. Silicon Techs., 261 F.3d at 1376. Again, 

we decline the invitation to reweigh the evidence considered by the Commission. Given the Commission’s extensive review and analysis of the record, its determination 

that it lacked sufficient evidence to support a finding of underselling or price suppression is reasonable and supported 

by substantial evidence.

CONCLUSION 

We have considered AISC’s remaining arguments and 

find them unpersuasive. For the foregoing reasons, we affirm the judgment of the Court of International Trade. 

AFFIRMED

COSTS

Each party shall bear its own costs.

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