# 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 INDUSTR IES 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, LL C, Defendants

______________________

2022

- 1176

______________________ Appeal from the United States Court of International Trade in No. 1:20

- cv

- 00090

- CRK, Judge Claire R. Kelly. Case: 22-1176 Document: 90 Page: 1 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 2

______________________

Decided: September 7, 2023

______________________

T HOMAS M. J OHNSON , J R ., Wiley Rein, LLP, Washington, DC, argued for plaintiff

- appellant. Also represented by S TEPHEN J OSEPH O BERMEIER , A LAN H. P RICE , A DAM M ILAN T ESLIK , E NBAR T OLEDANO , C HRISTOPHER B. W ELD

.

J OHN D AVID H ENDERSON , Office of Genera l Counsel,United States International Trade Commission, Washington, DC, argued for defendant

- appellee United States. Also represented by A NDREA C. C ASSON

.

D ANIEL M ARTIN W ITKOWSKI , Akin Gump Strauss Hauer & Feld LLP, Washington, DC, argued for defendant

appellee s 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 Manufac turing 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 M ATTHEW R. N ICELY

.

D ANIEL L. P ORTER , Curtis, Mallet

- Prevost, Colt & Mosle LLP, Washington, DC, for defendant -appellee BlueScope Buildings North America Inc. Also represented by J AMES B EATY , C HRISTOPHER A. D UNN

.

N ED H. M ARSHAK , Grunfe ld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York, NY, for defendants

appellees Jinhuan Construction Group Co., Ltd., Wison (Nantong) Heavy Industry Co., Ltd., Shanghai Matsuo Steel Structure Co., Ltd., Yanda (Haimen) Heavy Case: 22-1176 Document: 90 Page: 2 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 3

Equipment Manufacturin g Co., Ltd., Shanghai Cosco Kawasaki Heavy Industries Steel Structure Co., Ltd., ModernHeavy Industries (Taicang) Co., Ltd., Dickerson Enterprises, Inc., Steel Construction Group, LLC. Also represented by M AX F. S CHUTZMAN ; J ORDAN C HARLES K AHN , Washington , DC.

______________________
Before R EYNA , B RYSON , and C UNNINGHAM , Circuit Judges

. R EYNA , Circuit Judge

. Appellant appeal s from the judgment of the United States Court of International Trade that affirms a final negative determina tion 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 U nited S tates of certain FSS imports from

, among other countries, China. A ppellant appealed to the Court of International Trade , raising three principal issues : (1) that the C ommission erred by declin ing 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 af firm the judgment of the Court of International Trade. Case: 22-1176 Document: 90 Page: 3 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 4

B ACKGROUND 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

. I n February 2019, AISC filed antidump ing duty petitions before the U nited States International Trade Commission (“Commission”) and the United States Department of Commerce (“Commerce”)

, alleging unfair trade practices involving the import ation and sales in the United States of FSS from Canada, China, and Mexico. See [ FSS ] from Canada, China, & Mexico , USITC Inv. No s . 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 investigat ion are sold in the U nited 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 investi gation , 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 product s that are like the products under investigation by Commerce ( the se products are referred to as “ domestic like product” ) are materially injure d or threaten ed with material injury

. Cleo , 501 F.3d at 1294

– 95.

Central to both investigations , and this appeal, are the agencies’ respective definition s or identification of the products under their respective investigation . Th ese Case: 22-1176 Document: 90 Page: 4 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 5

appeal only involves the investigation on FSS imports from China.

On Februar y 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). T he Commission issued questionnaires to , among other entities, the AISC members hip

, 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 the y define both the scope of the invest igations 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) (“Th e 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.3d710 (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 investiga tion, whereas the [Commission’s] domestic like product determinations assess factors in relation to theproduction and sale of domestic like product by the domestic industry.”). Case: 22-1176 Document: 90 Page: 5 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 6

T he 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 invest ig ation addressed issues pertinent to the methodologies they used for report ing the data, as well as comment and argument regarding the Commission’s a nalysis and treatment of the data. F or example, A ISC 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 system s , or “ PEMB s.” 2 J.A. 12 0–2 1. 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 o r assembly into structures, including, but not limited to, building s. ” J.A. 2495

– 96

. Commerce’s subject merchandise determination provided several categories of exclusions, such as completed PEMB s . J.A. 2496; J.A. 8363

– 64

. For purposes of this appeal, PEMB s are “defined ascomplete metal buildings that integrate steel framing, roofing and walls to form one, pre

- engineered building systemand are designed and manufactured to [meet] Metal Building Manufactures Association guide specifications.” J.A. 111. PEMB s “are typically limited in height to no more than 60 feet or two stories.” Id

. Case: 22-1176 Document: 90 Page: 6 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 7

“domestic like product s ” and thus should be rejected by the Commission

. J.A. 8331

– 33 & n.47

. AISC argued, i n the alternative, th at to the extent that the data w ere no t rejected, the NCI and BlueScope data should be excluded under the captive production provision set out in 19 U.S.C. § 167 7 (7)(C)(iv)

. J.A. 8800 & n.180

. On January 30, 2020, Commerce rea ched a final affirmative determination, concluding that FSS from China was sold in the U nited S tates at less than fair value. Certain [ FSS ] from [China] , 85 Fed. Reg. 5376, 5379 (Dep ’ t of Com merce Jan. 30, 2020)

. On March 1, 2020

, the Commission issued the final negative determination

, concluding that the domestic FSS indus try was not materially injured or threatened with material injury by imports of subject FSS from C hina. [ FSS ] from Canada, China, & Mexico , USITC Inv. No. 701

- TA

616 (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 ther e was no “production of a downstream article,” as required by the statute. J.A. 88 00

– 88 01. And third, t he 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. T he 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 (“C ourt of International T rade ”)

. Full Member Sub. of the

3 Three Commissioners voted in the negative and two Commissioners voted in the affirmative. Case: 22-1176 Document: 90 Page: 7 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 8

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 fou r 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).

S TANDARD OF R EVIEW

We review de novo the Court of International Trade ’s judgment s on the agency record. Timken U.S. Corp. v. United States , 421 F.3d 1350, 1354 (Fed. Cir. 2005). In d oing so, we apply the same standard of review applied by theCourt 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’sdetermination 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).

D ISCUSSION 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 Case: 22-1176 Document: 90 Page: 8 Filed: 09/07/2023FULL 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 Co mmission ’ s domestic like product determination. AISC frames this issue as “[w] hether the Commission lawfullydeclined 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 erro neously failed to do so in this case. Id

. The domestic like product de termination is critical to the framework of antidumping duty investigation s . The statute charges the Commission with determin ing whether

a domestic industry is materially injured o r 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 wh ole of a domestic like product.” Id

. § 1677(4)(A). T he 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, w hether a U.S. producer is a member of the pertinent domestic industry is determined

o n the basis of whether it produces a domestic like product. If it does, then the Commission typ ically 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 investigati on. See Pokarna Engineered Stone Ltd. v. United States , 56 F.4th 1345, 1348 (Fed. Cir. 2023) (“ The Case: 22-1176 Document: 90 Page: 9 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 10

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 product s or merchandise are subject to the investigation , that task belongs to Commerce. See supra note 1.

The for e going is important to understand because AISC ’s arguments are directed to both the domestic like product and the subject merchandise determinations. Specifically, AISC frames it s argument in ter ms 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 a rgue s that the Commission is legally obligated to redefine the like product definition whenever a dispute arises about whether a product in fact me ets the domestic like product definition

. Appellant Br. 2 ; Reply Br. 2. AISC asserts that in addition to redefini ng 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 addres sing 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

ma tter of law to expressly redefine its domestic like product determination simply because a party dispute s 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 Case: 22-1176 Document: 90 Page: 10 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 11

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 (I nt ’ l Trade Comm ’n, June 5, 1998) ( “[ T] he Commission may revisit itslike 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 t o 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 wi th theCommission’s defining the domestic like product coextensively with the scope, thereby challenging an issue as towhich AISC prevailed below.”). As a result, we do not address whether the domestic like product definition itself is defective or other wise 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 produc t definition. See Appellant Br. 25

– 26. AISC argues that the Commission failed to resolve its argument during the investigation o r to articulate the resolution of the issue in its final determination

. Id . at 26. We disagree.

AISC asserts that the Comm ission should not have sought and received information and data from two U.S. companies : NCI and Blue S cope

. According to AISC , the NC I and Blue S cope submi s sions included “ significant volumes of non

- subject merchandise in their data.” Id . at 15. AI SC asserts that NCI “ reported data for complete PEMBs, Case: 22-1176 Document: 90 Page: 11 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 12

which are expressly out -of- scope , and both NCI and Blu eSc ope appeared to have reported data for substantial volumes of non

- FSS components of PEMBs (meaning [fabricated] steel that was used in a P EMB []

, but which A I SCdid 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 hinge s on equating “complete PEMBs”

— which are the completed building s— with PEMB kits. J.A. 3741. We disagree with that premise. The Commissionconcluded that PEMB kits are in scope, and thus were permissibly included in NCI and BlueScope’s data. J.A. 8774

– 7 6. 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 a rgument 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 arguedthat 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 FSSthat 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 Case: 22-1176 Document: 90 Page: 12 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 13

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 accord ance 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. T heCommission 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 firmsbelieved 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 thatAISC argues the domestic like product scope should be coextensive with Commerce’s subject merchandise scope). Before coming to its final determination, the Commission considered A I SC’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 d ata to ensure they did not include out -of- scope products , J.A. 88 21

– 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 Commissio n’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 Case: 22-1176 Document: 90 Page: 13 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 14

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 rea ching its own like product determination. ”); s ee, e.g. , J.A. 8765

– 71; J.A. 8822 n.304 . It then conduct ed 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 F SS 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. Insupport of these findings, the Commission relied on evidence related to how FSS and FSS components of PEMB s are produced, J.A. 8775, how they are distribut ed (e.g., in kits), J.A. 8776, and how the y are pric ed

, id

. Finally, w e are n ot 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 d efinition of fabricated structural steel.” Id . (emphasis in original). To the extent that AISC is referring to non

- loadbearing FSS, that argument fails for the reasons articulated above. Otherwise, its mere belief overturns neither the Commission’s tho rough 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 hol d that t he Commission’s domestic like product determination was reasonabl e, supported by substantial evidence, and in accordance with the law

. We find nothing on th is record that suggests that the Commission declined to address the issue, or that the Case: 22-1176 Document: 90 Page: 14 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 15

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. Accord ing to AISC, the captive production provision applies because “PEMB producers ‘ internally transfer red’ 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 theproduction 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 predomi nant 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 consider s the state of the domestic industry as a whole in its injury analysis. See 19 U.S.C. § 1673d(b)(1)(A)(i). A n exception to this rule is the captive production provision, which provides that

, if Case: 22-1176 Document: 90 Page: 15 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 16

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 addr esses 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

. T he rationale is that internally transferred domestic like products neither compete with

, nor are injured by

, the imported merchandise subject to the investigation. Whe n this provision applies, the Commission’s investigation exclud es 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 i d

. We conclude that the Commission correctly determined that the captive production provision does not apply here

. The Commission reasonably determined that complete

4 T he SAA is an authorita tive 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 Congressat 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. Case: 22-1176 Document: 90 Page: 16 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 17

PEMBs are fully assembled buildings that are out -of- scope, whereas PEMB kits containing FSS components of PEMBs that are later assembled into complete PEMB s are in scope. See, e.g ., J.A. 8371 ; J.A. 8398 ; J.A. 8801. Because both FSS components of PEMB s and PEMB kits are within the domestic like product scope

, s ee, e.g ., J.A. 8371 ; J.A. 8398 ; J.A. 88 01, 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, asAISC concedes, for the captive production provision to apply here, the producer that produces FSS components of PEMB s (or PEMB kits) must also internally transfer and

process those domestic like product s to produce the compl ete 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.4 th at 1350

– 51.

Those circumstances , howe ver, 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 PEMB s . Rather, the record establishes that unrelated third parties assemble the FSS components fro m 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”). Th us, 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”

n or the “production of a downstream article” within the meanin g 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 Case: 22-1176 Document: 90 Page: 17 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 18

language” because “the statute imposes no limit on who, in the internal transfer chain, must perform the final p roduction/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 int o a higher

- valued downstream article by the same producer.” SAA at 852 (emphasis added). Because FSS components of PEMB s , PEMB kits, and completePEMBs 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 t hat exceptional circumstances exist here

. We also find unpersuasive AISC’s argument that the Commission’s purported inconsistent labeling of certainparties 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. Butthere 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 Case: 22-1176 Document: 90 Page: 18 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 19

determination in this regard is supported by substantial evidence.
For the above reasons, we hold that the Commission’sdetermination that the captive production provision is inapplicable is supported by substantial evidence and in accordance with the law.

III. Price Effe cts

AISC argu es on appeal that t he Commission erred in it s determination that the record d oes not support a finding that import s 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 productprices 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 , t he 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 w here prices were not itemized, the Commission should have collected bid data from the FSS fabricator s

. 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 un supported by substantial evidence. Id . at 40. Alternatively , AISC argues that e ven on the existing record, the Commission’s price Case: 22-1176 Document: 90 Page: 19 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 20

effect s 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. AI SC claims that any limitation posed by

any single data so urce 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 obligate d 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 investigationfor comment. Any party desiring to comment on draft questionnaires shall submit such comments in writing to th e Commission within a time specified by the Director. All requests for collecting new information shall be presented atthis time. The Commission will disregard subsequent requests for collection of new information absent a showing that there is a compelli ng need for the information and that the information Case: 22-1176 Document: 90 Page: 20 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 21

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 r equires 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 ispossible to draw two inconsistent conclusions from evidence in the record” this does not neces sarily mean that the Commission’ s determination is un supported by substantial evidence. Am. Silicon Techs. v. United States , 261 F.3d 1371, 1376 (Fed. Cir. 2001).

We hold that t he 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. 840 4

. 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)

. Case: 22-1176 Document: 90 Page: 21 Filed: 09/07/2023FULL MEMBER SUBGROUP OF THE AMERICAN INSTITUTE v. US 22

the successful bidder, lowest total bids do not always winthe 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 therelative price levels of the domestic and subject FSS included in the bids.” Id . Third, it is not possible to “concludethat 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 a nd net sales within the domestic industry. J.A. 8415. As to COGS, the data suggested that “the industry’srevenues 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 w hole 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 t he 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 Case: 22-1176 Document: 90 Page: 22 Filed: 09/07/2023FULL 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 d ata 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 ; s ee also Am. Silicon Techs

. , 261 F.3d at 1376. Again,

w e decline the invitation to reweigh the evidence considered by the Commission. G iven the Commission’s extensive review and analysis of the record , it s determination that i t lacked sufficient evidence to support a finding of underselling or price suppression is reasonable and supported by substantial evidence.

C ONCLUSION We have considered AISC’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the judgment of the C ourt of International Trade

. AFFIRMED

C OSTS Each party shall bear its own costs. Case: 22-1176 Document: 90 Page: 23 Filed: 09/07/2023