Slip Op. 19- 60
UNITED STATES COURT OF INTERNATIONAL TRADE

ARLANXEO USA LLC and ARLANXEO BRASIL S.A., Plaintiffs,
and INDUSTRIAS NEGROMEX, S.A. DE C.V., INSA, LLC, KUMHO PETROCHEMICAL CO., LTD., and SYNTHOS S.A., Consolidated Plaintiffs,

v. UNITED STATES and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant,
and LION ELASTOMERS LLC,
Defendant-Intervenor. Before: Jennifer Choe-Groves, Judge
Consol. Court No. 17-00247

OPINION [Sustaining the U.S. International Trade Commission’s final affirmative material injury determination in the antidumping duty investig ation of emulsion styrene-butadiene rubber from Brazil, Mexico, the Republic of Korea, and Poland.] Dated: May 17, 2019 Kenneth G. Weigel, Alston & Bird, LLP, of Wash ington, D.C., argued for Plaintiffs Arlanxeo USA LLC and Arlanxeo Brasil S.A. With him on the briefs was Chunlian Yang.Consol. Court No. 17-00247 Page 2
William C. Sjoberg, Porter, Wright, Morris & Arthur, LLP, of Washington, D.C., argued for Consolidated Plaintiffs Industrias Negromex, S.A. de C.V. and INSA, LLC. Jarrod M. Goldfeder, Trade Pacific, PLLC, of Washington, D.C., for Consolidated Plaintiff Kumho Petrochemical Co., Ltd. With h im on the briefs was Aqmar Rahman. Jill A. Cramer, Mowry & Grimson, PLLC, of Wa shington, D.C., for Consolidated Plaintiff Synthos S.A. With her on the briefs were Jeffr ey S. Grimson and Yuzhe PengLing. Bryan P. Cenko, James C. Beaty, Kristin H. Mowry, and Sarah M. Wyss also appeared. Jane C. Dempsey, Attorney, Office of Genera l Counsel, U.S. International Trade Commission, of Washington, D.C., argued for Defendant U.S. International Trade Commission. With her on the brief were Dominic Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation. Matthew T. McGrath, Barnes, Richardson & Colburn, LLP, of Washington, D.C., argued for Defendant-Intervenor Lion Elastomers LLC.
Choe-Groves, Judge: This c onsolidated action challenges th e final affirmative material injury determination issued by the U.S. International Trade Commission (“Defendant,” “ITC,” or “Commission”) in the antidumping duty investig ation of emulsion styrene-butadiene rubber (“ESBR”) from Brazil, Mexico, the Republic of Korea (“Korea”), and Poland. See Emulsion Styrene-Butadiene Rubber From Brazil, Kor ea, Mexico, and Poland, 82 Fed. Reg. 43,402 (Int’l Trade Comm’n Sept. 15, 2017); see also Emulsi on Styrene-Butadiene Rubber from Brazil, Korea, Mexico, and Poland, USITC Pub. 4717, Inv. Nos. 731-TA-1334-1337 (Aug. 2017), available at https://www.usitc.gov/publi cations/701_731/pub4717.pdf (last visited May 14, 2019) (“Final ITC Determination”). Before the court are two Rule 56.2 Motions for Judgment on the Agency Record filed by Arlanxeo USA LLC, Arlanxeo Brasil S.A., Industrias Negromex, S.A. de C.V., INSA, LLC, Kumho Petrochemical Co., Ltd., and Synthos S.A. See Joint Mot. J. Agency R. Pursuant USCIT Rule 56.2 Pls. Ar lanxeo USA LLC & Arlanxeo Brasil S.A., &Consol. Court No. 17-00247 Page 3
Consol. Pls. Industrias Negromex, S.A. de C. V., INSA, LLC, Kumho Petrochemical Co., Ltd., & Synthos S.A., Apr. 30, 2018, ECF No. 46; Mot. J. Agency R. Pursuant Rule 56.2 Consol. Pl. Synthos S.A. Issue Negligibility, Apr. 30, 2018, ECF No. 42. For the following reasons, the court sustains the Commission’s final affirmative material injury determination.
ISSUES PRESENTED The court reviews the following issues:
1. Whether the Commission’s finding regardin g the volume of subject imports was supported by substantial evidence;
2. Whether the Commission’s finding rega rding price effects was supported by substantial evidence and in accordance with the law;
3. Whether the Commission’s finding regardin g the impact of subject imports was supported by substantial evidence and in accordance with the law; and
4. Whether the Commission’s determination that Poland was not a negligible source of subject imports was supported by substa ntial evidence and in accordance with the law.
PROCEDURAL HISTORY Lion Elastomers LLC (“Lion”) and East We st Copolymer, LLC filed antidumping duty petitions with the U.S. Department of Commerce (“Department” or “Commerce”) and the ITC on July 21, 2016, alleging that the domestic industry had been materially injured or threatened with material injury from imports of ESBR from Brazil, Korea, Mexico, and Poland. See Emulsion Styrene-Butadiene Rubber from Braz il, Korea, Mexico, and Poland, USITC Pub. 4636Consol. Court No. 17-00247 Page 4
at I-1, Inv. Nos. 731-TA-1334-1337 (Preliminary) (Sept. 2016). Commerce and the ITC instituted antidumping duty investigations. See id. Commerce completed its antidumping duty inves tigations of the four subject countries and published its final deter minations on July 19, 2017. See Emulsion Styrene-Butadiene Rubber From Brazil, 82 Fed. Reg. 33,048 (Dep’t Commerce July 19, 2017) (final affirmative determination of sales at less than fair value and final negative determination of critical circumstances) (“Brazil AD Final Determinati on”); Emulsion Styrene-Butadiene Rubber From the Republic of Korea, 82 Fed. Reg. 33,045 (Dep ’t Commerce July 19, 2017) (final affirmative determination of sales at less than fair value, and final affirmative determination of critical circumstances, in part) (“Korea AD Final Dete rmination”); Emulsion St yrene-Butadiene Rubber From Mexico, 82 Fed. Reg. 33,062 (Dep’t Co mmerce July 19, 2017) (final affirmative determination of sales at less than fair value) (“Mexico AD Final Determination”); Emulsion Styrene-Butadiene Rubber From Poland, 82 Fed. Reg. 33,061 (Dep’t Commerce July 19, 2017) (final affirmative determination of sales at less than fair value) (“Poland AD Final Determination”). In the Braz il investigation, Commerce found that the subject imports of ESBR were being sold at less than fair value and cal culated a final dumping margin of 19.61 percent. See Brazil AD Final Determination, 82 Fed. Reg. at 33,048. Commerce found also that the subject imports of ESBR were being sold at le ss than fair value in the Korea, Mexico, and Poland investigations and calcu lated final dumping margins of 9.66 percent to 44.30 percent, 19.52 percent, and 25.43 percent, respectively. See Korea AD Final Determination, 82 Fed. Reg. at 33,046; Mexico AD Final Determination, 82 Fed. Reg. at 33,063; Poland AD Final Determination, 82 Fe d. Reg. at 33,062.Consol. Court No. 17-00247 Page 5
The ITC published its final affirmative materi al injury determination on August 3, 2017. See Emulsion Styrene-Butadiene Rubber From Br azil, Mexico, Korea, and Poland, 82 Fed. Reg. at 43,402. The ITC held a public hearing on June 29, 2017, see Final ITC Determination at I-1, and received pre-hearing and post-hearing briefs from the relevant parties. See id. at 3. The Commission received questionnair e data from 15 importers accounting for 100 percent of imports of subject ESBR from Brazil, 92.2 percen t of imports of subject ESBR from Korea, 100 percent of imports of subject ESBR from Mexic o, 99.9 percent of imports of subject ESBR from Poland, and 79.5 percent of imports of ESBR from non- subject countries during the final year of investigation. See id. at 4. The ITC held a public hearing on June 29, 2017, see id. at I-1, and received pre-hearing and post-hearing briefs from re levant parties. See id. at 3. The period of investigation spanned from January 2014 through March 2017. See id. at 24. An evenly-divided Commission determined that an industry in the United States had been materially injured by reason of imports of ESBR from Brazil, Korea, Mexico, and Poland that Commerce found to be sold at le ss than fair value. See id. at 3, 12. As a result, Commerce published antidumping duty orders on subject imports from the four subject countries on September 12, 2017. See Emulsion Styrene-Butadi ene Rubber from Brazil, the Republic of Korea, Mexico, and Poland: Antidumping Duty Orders, 82 Fed. Reg. 42,790 (Dep’t Commerce Sept. 12, 2017) (“Antidumping Duty Orders”). The Commission commenced its injury analysis by defining the domestic product that is like or most similar to the imported ESBR and id entifying the industry responsible for producing the domestic like product. See Final ITC Determin ation at 4–8. ESBR is predominantly used in the production of car and light truc k tires, as well as in a variet y of non-tire products, includingConsol. Court No. 17-00247 Page 6
conveyor belts, shoe soles, hoses, roller coverings, and flooring. See id. at 6. The Commission’s definition of the domestic like product was coterminous with th e scope of the imported ESBR under investigation by Commerce. See id. at 7. “T he scope of these invest igations covers grades of ESBR included in the [International Ins titute of Synthetic R ubber Producers] 1500 and 1700 series of synthetic rubbers. . . . The Commission consequently defined a single domestic like product, consisting of the 1500 and 1700 series ES BR, a product category that was coextensive with the scope [set by Commerce].” See i d. at 5–7. The Commission found that the domestic industry includes all U.S. producers of th e domestic like product. See id. at 8. The Commission assessed the market conditions of the domestic ESBR industry in its analysis of material injury by reason of s ubject imports. See id. at 12–31. The Commission found that apparent domestic cons umption of ESBR declined over the period of investigation. See id. at 17. The Commission noted that demand for ESBR is “generally driven by the demand for tires, primarily demand for replacement tires and to a lesser degree for tires that original equipment manufacturers [ ] mount on new vehicl es.” Id. A “reduced demand for end-use products, such as replacement tires, off-the-road ti res, and conveyor belts” and an increase in the use of solution styrene-butadiene rubber (“SSBR” ) in place of ESBR were provided as reasons for the decline in demand. Id. The cost of raw materials used to produce ESBR, including styrene and butadiene, declined from January 2014 to December 2016, but increased from December 2016 to March 2017. See id. at 19–20. The domestic industry was the largest supplier of ESBR to the U.S. market during th e period of investigation, and cumulated subject imports from the four subject countries were the s econd largest source of supply. See id. at 18. Cumulated subject imports held a market share of approximately 20 percent during the period ofConsol. Court No. 17-00247 Page 7
investigation. See id. at 20. The Commission dete rmined that there was a moderate to high degree of substitutability between domestically pr oduced ESBR and the subject imports. See id. at 19. “[T]he 1500 and 1700 series ESBR are manufa ctured according to [International Institute of Synthetic Rubber Producers] industry specificat ions. Moreover, a majority of responding U.S. producers and purchasers reported th at ESBR imports from the subject countries are ‘always’ or ‘frequently’ interchangeable with each other a nd with the domestic like product.” See id. The Commission then considered the volume of cumulated subject imports, price effects of cumulated subject imports, and the impact of cumulated subject imports on the domestic industry. See id. at 20–31. The Commission found that although the quantity and market share of cumulated subject imports decreased from 2014 to 2016, said imports remained at “elevated levels in the U.S. market in 2015 and 2016.” S ee id. at 21. “[E]ven though demand declined and [domestic production recovered fr om supply disruption], cumulated subject imports did not meaningfully retreat from the U.S. market durin g the period of investigation.” See id. The Commission found that the volume of cumulated subj ect imports was significant “on an absolute basis and relative to apparent U.S. consump tion.” See id. Subject imports undersold the domestic like product and depressed U.S. producer prices to a significant degree. See id. at 22– 24. The Commission recognized that while other factors contributed to the downward trend in prices, including a decline in cost for raw materi als, “these cannot explain the magnitude of the declines in prices of the domestic like product.” See id. at 24. The Commission determined that the “significant volume of low-priced cumulate d subject imports put pressure on the domestic industry to reduce prices.” See id. at 25. Th e Commission noted that cumulated subject imports from the four subject countries had a significan t impact on the domestic industry, resulting inConsol. Court No. 17-00247 Page 8
declines in production, capacity utilization, U.S. shipments, and net sale s revenues as well as fluctuations in industry employment, wa ges, and productivity. See id. at 27–31. The Commission concluded that the domestic i ndustry was materially injured by reason of subject imports of ESBR from Brazil, Korea, Me xico, and Poland that were sold in the U.S. at less than fair value. See id. at 34. Accordin gly, Commerce issued antidumping duty orders on ESBR from the four subject countries . See Antidumping Duty Orders. Plaintiffs Arlanxeo USA LLC and Arlanxeo Brasil S.A. (collectively, “Plaintiffs”) and Consolidated Plaintiffs Industrias Negromex, S. A. de C.V. (“Industrias”), INSA, LLC, Kumho Petrochemical Co., Ltd., and Synthos S.A. (collectively, “Consolidated Plaintiffs”) initiated multiple actions challenging the ITC’s final affirmative determination of material injury, which the court consolidated. See Order, Feb. 9, 2018, ECF No. 35. The court denied Defendant’s motion to dismiss Industrias’ complaint and gr anted Industrias’ cross-motion for leave to construe the summons and complaint as concur rently-filed. See Arlanxeo USA LLC v. United States, 42 CIT __, 337 F. Supp. 3d 1350 (2018). Plaintiffs and Consolidated Plaintiffs filed a Rule 56.2 motion challenging various aspects of the Final ITC Determination. See Join t Mot. J. Agency R. Pursuant USCIT Rule 56.2 Pls. Arlanxeo USA LLC & Arlanxeo Brasil S.A., & Consol. Pls. Industrias Negromex, S.A. de C.V., INSA, LLC, Kumho Petrochemical Co., Lt d., & Synthos S.A., Apr. 30, 2018, ECF No. 46; see also Pls.’ & Consol. Pls.’ Mem. Supp. Joint Mot. J. Agency R. Under USCIT Rule 56.2, Apr. 30, 2018, ECF No. 46 (“Pls. Br.”). Consolidated Pl aintiff Synthos S.A. (“Synthos”) filed a Rule 56.2 motion challenging the ITC’s negligibility de termination regarding Poland. See Mot. J. Agency R. Pursuant Rule 56.2 Consol. Pl. Synthos S.A. Issue Negligibility, Apr. 30, 2018, ECFConsol. Court No. 17-00247 Page 9
No. 42; see also Mem. P. & A. Supp. Mot. J. Agency R. Pursuant Rule 56.2 Pl. Synthos S.A. Issue Negligibility, Apr. 30, 2018, ECF No. 45 (“Synthos Br.”). The court held oral argument on March 6, 2019. See Closed Oral Argument, Mar. 6, 2019, ECF No. 70.
JURISDICTION AND STANDARD OF REVIEW The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and Section 516A(a)(2)(B)(ii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (a)(2)(B)(ii), which grant the court authority to review actions contesting the ITC’s final affirmative injury determination following an antidumping or c ountervailing duty investigation. The court will uphold the ITC’s determinations, findings, or conclusions unless they are unsupported by substantial evidence on the record, or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i); see also Siemens Energy , Inc. v. United States, 806 F.3d 1367, 1369 (Fed. Cir. 2015). The possibility of drawing two incons istent conclusions from the evidence does not prevent the court from holding that the Commission’s determinations, findings, or conclusions are supported by substantial evidence. See Nippon Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed. Cir. 2006) (citing Am. Silicon Tech s. v. United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001)); see also Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
ANALYSIS
I. Legal Framework In order to make an affirmative material injury determination, the ITC must find that (1) material injury existed and (2) the material injury was caused by reason of the subject imports. See Swiff-Train Co. v. United St ates, 793 F.3d 1355, 1359 (Fed. Cir. 2015) (quoting Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed. Cir. 1997)). Material injury isConsol. Court No. 17-00247 Page 10
defined by statute as harm that is not inconsequential, immaterial, or unimportant. 19 U.S.C. § 1677(7)(A). To determine whether a domestic industry has been materially injured or threatened with material injury by reason of unfairly subsidized or less than fair value imports, the Commission considers: (I) the volume of imports of the subject merchandise, (II) the effect of imports of that merchandise on prices in the United States for domestic like products, and (III) the impact of imports of such me rchandise on domes tic producers of domestic like products, but only in th e context of production operations within the United States. Id. § 1677(7)(B)(i). The Commission may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports. Id. § 1677(7)(B)(ii). No single factor is dispositiv e and the significance to be assigned to a particular factor is for the ITC to decide. S ee S. Rep. No. 96-249, at 88 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 474. The statute neither defines the phrase “by re ason of” nor provides the ITC with guidance on how to determine whether the material injury is by reason of subject imports. The Court of Appeals for the Federal Circuit has interpreted th e “by reason of” statutory language to require the Commission to consider the volume of subject imports, their price effects, their impact on the domestic industry, and to establish whether th ere is a causal connection between the imported goods and the material injury to the domestic industry. See Swiff-Train Co., 793 F.3d at 1361; see also S. Rep. No. 96-249, at 57–58, 74–75 (197 9), reprinted in 1979 U.S.C.C.A.N. 381, 443– 44, 460–61.Consol. Court No. 17-00247 Page 11

II. The Parties’ Challenges to the Commission’s Final Affirmative Material Injury Determination Plaintiffs dispute various fi ndings made by the Commission that contributed to the final affirmative material injury determination. The court addresses each finding in turn.
A. The Commission’s Volume Determination The ITC is required to consider the volume of subject imports in determining whether a domestic industry has been materially injured. See 19 U.S.C. § 1677(7)(C)(i). When evaluating volume, the Commission must consider “whether the volume of imports of the merchandise, or any increase in that volume, either in absolute terms or relative to pr oduction or consumption in the United States, is significant.” Id. § 1677(7 )(C)(i); see also Nucor Corp. v. United States, 414 F.3d 1331, 1335 (Fed. Cir. 2005). The statute does not define what is cons idered “significant” because “[f]or one industry, an apparently sm all volume of imports may have a significant impact on the market; for another, the same volum e might not be significant.” See S. Rep. No. 96–249, at 88 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 474. The court will uphold the Commission’s volume determination unless it is unsupported by s ubstantial evidence in the record. See Siemens Energy, Inc., 806 F.3d at 1369 (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). The Commission found that the volume of cumu lated subject imports was significant on an absolute basis and relative to apparent U.S. consumption. Final ITC Determination at 21. The cumulated subject imports held a market share of approximately 20 percent during the period of investigation. Id. at 20. The volum e of cumulated subject imports increased from 2013 to 2014, after Lion closed its Baton Rouge plant in December 2013, and decreased between 2014 and 2016. See id. at 21. The Commission noted that after the plant reopened in April 2014Consol. Court No. 17-00247 Page 12
and U.S. consumption declined, the cumulated subject imports remained at elevated levels in the U.S. market in 2015 and 2016. See id. The Commi ssion stated that the oversupply of ESBR in the global market contributed to the attractiveness of the U.S. market for the subject imports. See id. The Commission found that the domestic industry had sufficient capacity to supply apparent U.S. consumption during the pe riod of investigation. Id. at 21 n.115. Plaintiffs contend that the Commission failed to consider “the cont ext and conditions of competition here,” specifically that purchasers bought the subject imports in order to ensure an “available i.e. secure, and reliable supply during a chaotic period for the domestic industry” due to supply disruptions after the Baton Rouge plant cl osed. See Pls. Br. 8–10. Plaintiffs’ argument fails because the Commission did consider the “c ontext and conditions of competition here.” After the Baton Rouge plant closed, the volume of cumulated subject imports increased, and after the plant reopened, demand declined. Final ITC Deter mination at 21. The Commission observed that after the plant reopened, the “cum ulated subject imports did not meaningfully retreat from the U.S. market.” See id. The Commission found also that the oversupply of ESBR in the global market contributed to the attractiveness of the U.S. market, thus the plant closure was not the sole reason for the increase in imports. See id. Because the Commission did consider the supply disruptions in its volume an alysis and other conditions of competition such as the oversupply of ESBR in the global market , the court concludes that the Commission’s volume determination is supporte d by substantial evidence.
B. The Commission’s Price Effects Determination In evaluating the effect of imports on prices, the statute directs the Commission to consider whether:Consol. Court No. 17-00247 Page 13
(I) there has been significant price underselling by the imported merchandise as compared with the price of domestic like products of the United States, and (II) the effect of imports of such mercha ndise otherwise depresses prices to a significant degree or prevents price increases, which otherwise would have occurred, to a significant degree. 19 U.S.C. § 1677(7)(C)(ii).
1. Underselling The Commission found widespread underselling of the domestic like product by subject imports based on evidence that the subject im ports undersold the domestic like product in 150 of 218 quarterly price comparisons and 85.6 percent of the quantity of subject imports covered by the pricing data was sold during quarters in which the average price of these imports was less than that of the comparable domestic product. See Final ITC Determination at 22–23. The Commission also addressed the argument that the pricing data for some products was skewed because of a “swap” agreement between Arla nxeo and Goodyear Tire & Rubber Company (“Goodyear”), in which Arlanxeo received U. S.-produced ESBR in exchange for its Brazilproduced ESBR on a pound for pound basis at an artif icial price. See id. at 23. The Commission found that the “swap” price was the result of a negotiation between two unr elated companies and thus declined to revise the pricing date. See id. Plaintiffs contend that the Commission’s unde rselling analysis is flawed because the Commission based its analysis on the pricing tr ends between January 2014 and December 2016 and overlooked the fact that domestic prices incr eased over the period of investigation, including the first quarter of 2017. See Pls. Br. 14–15. Pl aintiffs argue that the Commission did not properly analyze the causal nexus between subject imports and domestic pr ices because it failedConsol. Court No. 17-00247 Page 14
to consider other factors on prices such as dema nd declines, raw material cost fluctuations, and the intensification of domestic compe tition. See Pls. Br. 19; Pls. Reply 10. 1 Plaintiffs argue also that the Commission improperly considered the artificial swap price between Arlanxeo and Goodyear rather than the market price of the ESBR in the Commission’s injury finding. See Pls.
Br. 24. Plaintiffs’ first two arguments conflate the Commission’s analysis of underselling and price depression. Section 1677(7 )(C)(ii)(II) requires the Commission to undertake two distinct analyses. Underselling involves a comparison of the “price of domestic like products of the United States” and the “imported merchandise .” 19. U.S.C. § 1677(7)(C)(ii)(I). The Commission properly undertook its underselling anal ysis by comparing prices from January 2014 through March 2017. See Final ITC Determ ination at Table V-10. Plaintiffs’ first argument that the Commission overl ooked pricing data from the first quarter of 2017 is related to the Commission’s price depression analysis. See id. at 24 (“Our analysis of price depression focuses on movements in quarterly prices for the domestic like produc t and subject imports between January 2014 and December 2016.”). Plai ntiff’s second argument relates to the Commission’s price depression analysis rather than its underselling analysis because the “causal nexus” between subject imports and domestic prices is related to “t he effect of imports of such

1 At a closed oral argument, Plaintiffs raised a new, additional argument regarding price and underselling in support of their contention that the Commission improperly analyzed the causal nexus. See Closed Oral Argument, Mar. 6, 2019, ECF No. 70. Plaintiffs failed to raise this argument in their opening brief and the court thus deems the argument waived. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (“Our law is well established that arguments not raised in the opening brief are waived.”).Consol. Court No. 17-00247 Page 15
merchandise” under 19 U.S.C. § 1677(7)(C)(ii) . Because the Commission’s underselling analysis was distinct from its price depre ssion analysis, the court concludes that the Commission’s underselling analysis is in accordance with the law. Plaintiffs’ argument regarding the “swap” price is relevant to the Commission’s underselling analysis. The Commission addressed the “swap” price in its analysis and declined to revise the pricing data as “the price of the swap sales wa s negotiated between two unrelated companies.” See Final ITC Determination at 23. The Commission is required to compare the prices of subject imports to the domestic lik e product. See 19. U.S.C.§ 1677(7)(ii)(II). The Commission is not required to compare the “marke t price” of subject imports to the domestic like product, nor is the Commission required to re vise the pricing data because Goodyear and Arlanxeo negotiated a swap price “higher than the actual market price.” See Final ITC Determination at 23. The Commi ssion fulfilled its statutory obligation by using Goodyear’s reported price for the swap transactions. Becau se the Commission did not have to revise the swap price, the court finds that the Commissi on’s use of the swap price in its underselling analysis is in accordance with the law.
2. Price Depression The Commission found that the subject imports depressed U.S. produc ers’ prices to a significant degree. Id. at 24. The Commission’s analysis focused on quarterly prices between January 2014 and December 2016 and acknowledged that prices for the domestic products “rose sharply during the first quarter of 2017.” See id. at 24 n.132. The Commission did not include this data in its analysis because there were “anomalous conditions during this quarter, as it reflected a period when raw material costs spiked .” See id. Prices, demand, and raw materialConsol. Court No. 17-00247 Page 16
costs declined from January 2014 to December 2016 for all products. See id. at 24. The Commission observed that “despite declining de mand, the volume of cumulated subject imports remained at significant levels.” Id. Th e Commission found that the significant volume of imports put pressure on the domestic industry to reduce prices by lowering the fixed conversion fee, which covers producers’ other material cost s, fixed overhead costs, and a profit margin in the contract pricing formulas . See id. at 20, 25. The Commission acknowledged the intraindustry competition between producers, but found that this argument failed because of the “price transparency in this market” and that it was the presence of the imports in the market that caused the price depression. See id. at 26. Plaintiffs contend that the Commission’s determination is unsuppor ted by substantial evidence because it failed to consider the declin e of subject import volume and market share in its price depression analysis. See Pls. Br. 24–26. Plaintiffs argue that the Commission’s price depression analysis is based on an unreasonable interpretation of record evidence because the tables and figures cited by the Commission do not illustrate a causal nexus between the prices of the subject imports and the pri ces of the domestic industry, and the Commission did not consider how the domestic supply shortage caused by the shutdown of the Baton Rouge plant in December 2013 affected downward pricing pressure. Id. at 26–29. The statute directs the Commission to consid er the effect of imports and whether the imports depress prices to a significant degree, an d the imports need not be the sole cause of the price depression. See 19 U.S.C. § 1677(7)(C)(ii) ; Hyundai Elecs. Indus. Co. v. United States, 21 CIT 481, 486 (1997). Plaintiffs’ arguments thus fail. First, the Commission addressed the decline of subject import volume and market share in its analysis, but found that the “volume ofConsol. Court No. 17-00247 Page 17
cumulated subject imports is significant on an absolute basis and relative to apparent U.S. consumption.” See Final ITC De termination at 21. Second, the prices of the subject imports need not be the sole cause of the price depre ssion but should depress prices or prevent price increases “to a significant degree.” See 19 U.S.C. § 1677(7)(C)(ii). The Commission explained that although “other factors contributed to the do wnward trend in prices, these cannot explain the magnitude of the decline in prices of the domes tic like product.” See Fina l ITC Determination at 24. The Commission did not explicitly make a find ing regarding any supply shortage caused by the plant closure in its price depression analysis, but it need not do so. See Calabrian Corp. v. United States Int’l Trade Comm’n, 16 CIT 342, 350, 794 F. Supp. 377, 385 (1992) (The Commission “is not required to make explicit finding s with respect to all factors considered.”) Because the Commission considered the volume and market share of the subject imports in its price depression analysis, the c ourt concludes that this analys is is supported by substantial evidence. Plaintiffs contend also that the Commission’s conclusion that the subject imports depressed the conversion fee was contra dicted by record evidence. See Pls. Br. 29–34. During the period of investigation, purchasers informed dome stic suppliers their prices were higher than subject imports and requested that the suppliers m eet the subject import prices and in order to do so, purchasers negotiated cuts in the fixed conve rsion fee. See Final ITC Determination at 25– 26. Record evidence thus supports the Commissi on’s conclusion. The court finds that the Commission’s conclusion that the subject imports depressed the conversi on fee is supported by substantial evidence.Consol. Court No. 17-00247 Page 18

C. The Commission’s Impact Determination As part of its material injury analysis, the Commission must consider “the impact of [subject imports] on domestic producers of domestic like products, but only in the context of production operations within the United States.” 19 U.S.C. § 1677(7)(B)(i)(III). The statute specifies a number of factors that are relevant in determining whether s ubject imports have had an adverse impact on domestic producers: (I) actual and potential decline in output, sa les, market share, gross profits, operating profits, net profits, ability to service debt, productivity, return on investments, return on assets, and utilization of capacity, (II) factors affecting domestic prices, (III) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment, (IV) actual and potential negative effects on the existing development and production efforts of the domestic industr y, including efforts to develop a derivative or more advanced versi on of the domestic like product, and (V) in a proceeding under part II of this s ubtitle, the magnitude of the margin of dumping. Id. § 1677(7)(C)(iii). The Commission is directed to “evaluate all relevant economic factors . . . within the context of the business cycle and conditions of competition that are distinctive to the affected industry.” Id. No single factor is dis positive and “the significance to be assigned to a particular factor is for the ITC to decide.” See S. Rep. No. 96–249, at 88 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 474. Plaintiffs contest the Commission’s final determination that the subject imports had a significant impact on the domestic industry, and argue that the determination was not supported by substantial evidence and otherwise not in accordance with the law. See Pls. Br. 34. Plaintiffs’ chief complaint is that the Commission erred by failing to consider their cost-priceConsol. Court No. 17-00247 Page 19
squeeze argument, i.e., that it was Lion’s own bus iness decisions, not the subject imports, that caused the cost-price squeeze in the domestic market. See id. at 36–43. In other words, Plaintiffs contend that the unde rselling and alleged price depres sion associated with subject imports were not the sources of the domestic industry’s poor condition. See id. at 44. The Commission “acknowledge[d] that intra- industry competition existed during the period of investigation,” but found that “such competition d[id] not explain the significant volume of cumulated subject imports, the signific ant underselling of the do mestic like product by cumulated subject imports, and the significant pr ice depression caused by the cumulated subject imports during this time period.” Final ITC Determination at 30. The Commission adequately addressed the intra-industry comp etition and its analysis is suppor ted by substantial evidence. The Commission is not required to focus on one portion of the industry by making a disaggregated analysis of material injury and thus did not have to focus its intra-industry competition analysis at a granular level specific to the business data of Lion. See Calabrian Corp., 16 CIT at 350, 794 F. Supp. at 385. The court concludes, therefore, that the Commission’s impact determination also is in accordance with the law.
III. Negligibility Imports are negligible “if such imports acc ount for less than 3 percent of the volume of all such merchandise imported into the United States in the most recent 12–month period for which data are available that precedes the f iling of the petition.” 19 U.S.C. § 1677(24)(A)(i)(I) (emphasis added). The Commission “may make reasonable estimates on the basis of available statistics” of the relevant import levels for purposes of deciding negligibility. Id. § 1677(24)(C).Consol. Court No. 17-00247 Page 20
If the Commission determines that imports of the subject merchandise are negligible, the investigation terminates with respect to those imports. See id. § 1673d(b)(1). Synthos contests the Commission’ s determination that Poland wa s not a negligible source of ESBR imports and Poland’s inclusion in the Commission’s affirmative in jury determination. See Synthos Br. 2. Synthos contends that the Commission’s determin ation was unsupported by substantial evidence and not in accordance with the law because the Commission did not retrieve import data from the proprietary Customs records fo r two of the four tariff classifications (HTS numbers 4002.19.0016 and 4002.60.0000) under which ESBR entered the United States, thus underestimating the total imports of ESBR and overinflating Poland’ s share of imports. See id. at 7–8. The Commission explained its methodology, stating that U.S. impor t data “are based on importer questionnaire responses that have been supplemented with official Commerce import statistics on imports entering under HTS number 4002.19.0015 and, for Korea only, also under HTS 4002.19.0019.” Final ITC Determination at 9 n.38. The questionnaire data accounted for 100 percent of subject imports from Brazil in 2016, 92.2 percent of imports of subject merchandise from Korea, 100 percent of subject imports from Brazil in 2016, 92.2 percent of subject imports from Poland, and 79.5 percent of imports of ESBR from nonsubject countries. Id. The Commission reasoned that “[r]elying on such data supplemented with official import statistics provides a more accurate measure of total imports” because the merchandise imported under the two other classification head ings (HTS numbers 4002.19.0016 and 4002.60.0000) was done in error. Id. The questionnaire responses in cluded the misclassified ES BR. See id. at IV-1 n.3 (“Other than imports under HTS numbe r 4002.19.0015, two firms reported importing under HTS number 4002.19.0019, one firm under 4002.19.0016, and one firm under 4002.60.0000.”).Consol. Court No. 17-00247 Page 21

The Commission “rel[ied] on [this] data.” Id. at 9 n.38. Because the Commission’s analysis included the misclassified ESBR th at entered under the two tariff classifications at issue, it did not need to include all imports that entered under those classifications. The court finds that the Commission’s negligibility deter mination is supported by subs tantial evidence because it included the misclassified ESBR. The Commission di d not need to retrieve the import data from the proprietary Customs records for all tariff head ings at issue, and the court concludes that the Commission’s negligibility determination is in accordance with the law.
CONCLUSION For the foregoing reasons, the court concludes that: (1) the Commission’s findings regarding the volume of subject imports is supported by substantial evidence; (2) the Commission’s findings regarding price effects wa s supported by substantial evidence and in accordance with the law; (3) the Commission’s fi ndings regarding the impact of subject imports was supported by substantial evidence and in acc ordance with the law; and (4) whether the Commission’s determination that Poland was not a negligible so urce of subject imports was supported by substantial evidence and in accordance with the law. Judgment will be entered accordingly.

/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge Dated: May 17, 2019 New York, New York