Slip Op. 15-51

UNITED STATES COURT OF INTERNATIONAL TRADE

JMC STEEL GROUP, 

Plaintiff, 

ALLIED TUBE AND CONDUIT, 

WHEATLAND TUBE, and UNITED 

STATES STEEL CORPORATION, 

Plaintiff-Intervenors, 

v.

UNITED STATES, 

Defendant, 

AL JAZEERA STEEL PRODUCTS CO. 

SOAG, VIETNAM HAIPHONG 

HONGYUAN MACHINERY 

MANUFACTORY CO., LTD.,

UNIVERSAL TUBE AND PLASTIC 

INDUSTRIES, LTD., KHK 

SCAFFOLDING & FORMWORK, LLC, 

UNIVERSAL TUBE AND PIPE 

INDUSTRIES, LLC, ZENITH BIRLA 

(INDIA) LIMITED, and CONARES 

METAL SUPPLY LIMITED, 

Defendant-Intervenors. 

Before: Mark A. Barnett, Judge

Court No. 13-00022

OPINION

[The court sustains the International Trade Commission’s Redetermination.] 

Dated: May 29, 2015 

John R. Magnus, Tradewins LLC, of Washington, DC, for plaintiff.

Roger B. Schagrin and John W. Bohn, Schagrin Associates, of Washington, DC, for 

plaintiff-intervenor Allied Tube and Conduit. 
Court No. 13-00022 Page 2 

Stephen P. Vaughn, Robert E. Lighthizer, and James C. Hecht, Skadden, Arps, Slate, 

Meagher & Flom LLP, of Washington, DC, for plaintiff-intervenor United States Steel 

Corporation. 

Gilbert B. Kaplan and Brian E. McGill, King & Spalding, LLP, of Washington, DC, for 

plaintiff-intervenor Wheatland Tube. 

Karl von Schriltz, Attorney, Office of the General Counsel, Dominic L. Bianchi, General 

Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation, U.S. 

International Trade Commission, of Washington, DC, for defendant. 

David L. Simon, Law Offices of David L. Simon, of Washington, DC, for defendantintervenor Al Jazeera Steel Products Co. SAOG. 

Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Brady W. Mills, Mary S. 

Hodgins, and Sarah S. Sprinkle, Morris, Manning & Martin LLP, of Washington, DC, for 

defendant-intervenors Universal Tube and Plastic Industries, Ltd., KHK Scaffolding & 

Formwork, LLC, and Universal Tube and Pipe Industries, LLC. 

Max F. Schutzman, Ned. H. Marshak, and Kavita Mohan, Grunfeld, Desiderio, Lebowitz, 

Silverman & Klestadt, LLP, of New York, NY, for defendant-intervenors Zenith Birla 

(India) Ltd. and Conares Metal Supply Ltd. 

Robert F. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington, DC, 

for defendant-intervenor Vietnam Haiphong Hongyuan Machinery Manufactory Co., Ltd.

Barnett, Judge: This matter, which arises from the International Trade

Commission’s (“ITC” or “Commission”) antidumping and countervailing duty 

investigations into certain circular welded carbon-quality steel pipe (“CWP”) from India, 

Oman, the United Arab Emirates, and Vietnam (“subject imports”), returns to the court 

following remand to the Commission in JMC Steel Group v. United States, 38 CIT __, 

24 F. Supp. 3d 1290 (2014) (“JMC I”).1 In that decision, the court ordered the 

Commission to (1) “reconsider its findings with regard to lost sales and revenue, taking 

1 The court presumes familiarity with the background and procedural history of the case, 

although relevant portions are summarized below.
Court No. 13-00022 Page 3 

into account [the] argument that the structure of the domestic CWP market precludes 

Plaintiffs from providing the ITC the lost sales and revenue information in the form and 

manner in which it was sought,” and (2) “explain how it has evaluated the impact of 

subject imports on the domestic industry within the context of the business cycle.” Id. at 

__, 24 F. Supp. 3d at 1321. On February 9, 2015, the ITC filed its final negative injury 

remand results, in which it again found no material injury or threat thereof to the 

domestic industry. See Views of the Commission, USITC Pub. 4521, Inv. Nos. 701-TA482-484 and 731-TA-1191-1194 (Final) (Remand) (Feb. 2015) (“Remand Views”).2

Plaintiff, JMC Steel Group, and Plaintiff-Intervenors, United States Steel Corporation 

and Wheatland Tube, (“Plaintiffs”) challenge the remand results.3 (See generally 

Confidential Comments of JMC Steel Group, Wheatland Tube, and United States Steel 

Corporation on the Commission’s Remand Determination (“Comments”) (ECF No. 

152).) For the reasons stated below, the remand results are sustained.

BACKGROUND AND PROCEDURAL HISTORY

A. The Administrative Proceedings

On October 26, 2011, Plaintiffs filed a petition with the ITC, alleging material 

injury and threat of material injury by reason of the subject imports. See Circular 

Welded Carbon-Quality Steel Pipe from India, Oman, United Arab Emirates, and 

Vietnam, 76 Fed. Reg. 68,208 (ITC Nov. 3, 2011) (initiation of antidumping and 

2 All citations to the Remand Views and to the agency record are to their confidential 

versions. 

3 Plaintiff-Intervenor Allied Tube and Conduit did not submit comments on the remand 

results. 
Court No. 13-00022 Page 4 

countervailing duty investigations). In December 2012, the ITC published a final 

determination, Circular Welded Carbon-Quality Steel Pipe from India, Oman, the United 

Arab Emirates, and Vietnam, 77 Fed. Reg. 73,674 (ITC Dec. 11, 2012) (“Final 

Determination”), and accompanying Views of the Commission, USCIT Pub. 4362, Inv. 

Nos. 701-TA-482-484 and 731-TA-1191-1194 (Final) (Dec. 2012) (“Original Views”),

which examined a period of investigation (“POI”) of January 2009 through June 2012. 

The Commission determined that subject imports and the domestic like product are 

“generally fungible,” share the same channels of distribution, have a “reasonable 

overlap” of competition, and that price is a significant factor in CWP purchasing 

decisions. It found a significant increase in the volume of subject imports during the 

POI, in absolute terms and relative to domestic consumption and production, but 

concluded that the increase did not have significant adverse effects on the domestic 

industry. Although the ITC observed that subject imports “pervasively undersold” the 

domestic like product by significant margins during the POI, it nevertheless found “no 

evidence” that subject imports significantly depressed or suppressed prices of the 

domestic like product. The ITC also found that the domestic industry’s performance 

improved in “almost every measure [during the POI] despite the weak recovery in CWP 

demand” following the 2008 economic crisis and that there was no correlation between 

subject import volume, market share, and underselling, on the one hand, and domestic 

industry performance, on the other. The Commission thus determined that the subject 

imports neither caused nor threatened to cause material injury to the domestic industry.

See generally Final Determination; Original Views.
Court No. 13-00022 Page 5 

B. JMC I

Plaintiffs challenged the Final Determination on numerous grounds. (See 

generally ECF Nos. 71, 76, 77, 82, 85.) In JMC I, the court addressed Plaintiffs’

arguments and affirmed, in part, and remanded, in part, the determination. Of 

relevance to the present opinion, the court found that the ITC did not assume that 

negative volume effects alone cannot warrant an affirmative injury determination and 

also held that “the fact that the ITC found a significant increase in subject import volume 

and market share does not compel an affirmative injury determination.” JMC I, 38 CIT 

at __, 24 F. Supp. 3d at 1299. The court also affirmed the Commission’s findings that 

there was no correlation between increased subject import volume and negative price 

effects on the domestic like product, and between subject imports’ increased volume 

and the domestic industry’s performance during the POI. Id. at __, 24 F. Supp. 3d at 

1302-03, 1306-10.

The court, however, remanded the Final Determination to the ITC on two 

grounds. First, the court questioned the Commission’s treatment of the domestic 

producers’ lost sales and revenue allegations in the price effects analysis. Id. at __, 24 

F. Supp. 3d at 1304-05. Plaintiffs had averred that they could not provide lost sales and 

revenue information, in the form and manner requested by the Commission, due to the 

structure of the domestic CWP market. The court held that, in such circumstances, 

pursuant to 19 U.S.C. § 1677m(c), the Commission must “consider the ability of the 

party to submit the information and may modify its requirements to avoid imposing an 

unreasonable burden on the party when certain additional requirements are met. In 
Court No. 13-00022 Page 6 

certain cases, the Commission also is required to provide such parties any assistance 

that is practicable.” Id. at __, 24 F. Supp. 3d at 1304-05 (citation omitted). The court

found that “[t]he record is ambiguous as to whether domestic interested parties took the 

necessary steps to properly invoke these provisions and, if so, the extent to which the 

Commission considered modifying its information requests or otherwise assisting these 

parties in addressing the questions regarding lost sales and revenue.” Id at __, 24 F. 

Supp. 3d at 1305. The court concluded that the ITC had, in effect, treated the domestic 

industry’s inability to provide this information, in the form and manner requested, as an

adverse inference against it, without addressing the requirements of 19 U.S.C. § 1677e. 

Id. The court remanded the issue and instructed the ITC to reconsider its findings with 

regard to lost sales and revenue. Id. The court also ruled that “the Commission may 

collect additional evidence relevant to this issue and reconsider any aspect of the Final 

Determination which relied upon or took into consideration the Commission’s prior 

findings regarding lost sales and revenue.” Id. 

Second, the court found that the ITC, in assessing the effects of subject imports 

on the domestic industry, did not “‘evaluate all relevant factors which have a bearing on 

the state of the [CWP] industry in the United States . . . within the context of the 

business cycle,’” as required by 19 U.S.C. § 1677(7)(C)(iii). Id. at __, 24 F. Supp. 3d at 

1307 (ellipses in original) (quoting 19 U.S.C. § 1677(7)(C)(iii)). Specifically, the court 

stated: 

While the Commission referenced the dismal economic conditions 

that affected the industry at the beginning of the POI, it did not clearly 

address whether the improvements in nearly every measure of industry 
Court No. 13-00022 Page 7 

performance may appear significant because of the broader economic 

recovery, thereby masking the injurious impact of subject imports on the 

domestic industry. Without expressly discussing the effects of the economic 

recovery on the domestic industry and explicitly addressing those effects in 

contrast to the effects of subject imports, the court cannot assume that the 

Commission has evaluated all relevant factors having a bearing on the state 

of the industry within the context of the business cycle.

The court recognizes that certain other issues discussed in this 

opinion (e.g., the use of pre-POI data . . . ) could be considered part of the 

Commission’s proper consideration of the business cycle; however, in light 

of the emphasis placed on the distortive effect of the 2009 economic 

collapse, it was incumbent upon the Commission to be clear about how it 

evaluated all relevant factors, particularly in the aftermath of the economic 

collapse, in the context of the business cycle. The court therefore remands 

the Commission’s determination so that the Commission may explain how 

it has evaluated the relevant economic factors bearing on the state of the 

domestic industry within the context of the business cycle. The Commission 

may make additional determinations, including reconsidering issues 

otherwise addressed and affirmed in this opinion, as are necessary to 

account for such explanations.

Id. at __, 24 F. Supp. 3d at 1308 (internal citations and quotation marks omitted). 

C. Remand Results

On remand, the ITC declined to reopen the record. Remand Views at 6 (citation 

omitted). The Commission determined not to reconsider “those issues either affirmed 

by the Court or not subject to appeal, and therefore adopt[ed] its findings, analysis, and 

conclusions with respect to those issues in their entirety, including domestic like 

product, domestic industry, negligibility, cumulation, legal standards, and conditions of 

competition.” Id. at 6-7. It also adopted “those portions of the Original Views pertaining 

to the analysis of volume, price, impact, and threat that were affirmed by the Court . . . 

or not subject to appeal.” Id. at 7.
Court No. 13-00022 Page 8 

In its revised lost sales and revenue analysis, the ITC noted that the court had 

affirmed its finding that subject imports had no negative price effects on the domestic 

like product. Id. at 10. The ITC then determined that it “ha[d] no need to rely on the 

absence of confirmed lost sales and revenue allegations as further support for these 

findings.” Id. In response to the court’s order that the Commission “tak[e] into account 

Plaintiffs’ argument that the structure of the domestic CWP market precludes Plaintiffs

from providing the ITC the lost sales and revenue information in the form and manner in 

which it was sought,” JMC I, 38 CIT at __, 24 F. Supp. 3d at 1321, the Commission 

reexamined the record and found “no evidence that the domestic interested parties 

invoked [19 U.S.C. § 1677m(c)], nor d[id] the domestic interested parties claim to have 

done so” during the remand proceedings. Remand Views at 8 n.29. The Commission 

clarified that it does not make adverse inferences against parties for failing to report lost 

sales and revenue allegations because, inter alia, responses to lost sales and revenue 

questions are voluntary. Id. at 10-11 (“Because the reporting of lost sales and revenue 

allegations is voluntary, . . . the domestic interested parties’ alleged inability to report 

such allegations . . . would not have constituted a failure . . . to cooperate to the best of 

their ability . . . within the meaning of the statutory provision governing adverse 

inferences.”) (citing 19 U.S.C. § 1677e(a)). When a party cannot respond to the best of 

its ability to such a request, “the Commission’s practice has been to rely on the 

information available, rather than resorting to the use of adverse inferences.” Id. at 11-

12. 
Court No. 13-00022 Page 9 

With regard to the second remanded issue, the ITC reassessed the domestic 

industry’s performance in the context of the business cycle, and, in particular, whether 

the economic downturn in 2009 and subsequent recovery masked injury to the domestic 

industry by subject imports. Id. at 16-27. The ITC found that the domestic industry 

improved “markedly during the POI according to every measure except market share, 

capacity, and employment,” although the domestic industry faced weak CWP demand 

due to the lackluster economic recovery. Id. at 18 (citing Original Views at 34-37) 

(adopting full discussion of domestic industry’s performance in Original Views). Stated 

differently, the ITC concluded that the tepid economic recovery did not obscure injury to 

the domestic industry. 

The ITC also contrasted the effects of the economic recovery with those of 

subject imports to discern whether subject imports had a significant adverse impact on 

the domestic industry that was distinguishable from the business cycle. The 

Commission concluded, for several reasons, that “the domestic industry’s recovery 

would not have been significantly stronger but for the increase in subject import volume 

and market share.” Id. at 23. First, the absence of a significant decline in the domestic 

industry’s performance, irrespective of trends in subject import volume, market share, 

and underselling, was “consistent with the weak recovery in CWP demand during the 

period.” Id. at 23-24 (noting increased U.S. shipments, stable market share compared 

to 2000-2008, increased prices in three of four pricing products and average value of 

U.S. shipments, reduced ratio of cost of goods sold (“COGS”) to net sales, and 

improved, though irregular, operating income and operating income margin). Second, 
Court No. 13-00022 Page 10

there was no correlation between the performance of the domestic industry and subject 

import market share, underselling, or the size of the underselling margins. Id. at 25-26

(citing Original Views at 30-32, 38-39; Staff Report at Tables V-1-4, VI-1). Finally, “the 

significant presence of competitively-priced nonsubject imports in the U.S. market 

throughout the POI further undermines any possible relationship between subject import 

competition and the domestic industry’s performance during the period.” Id. at 26 (citing 

Staff Report at Tables IV-3, IV-10, C-1, App. D).

After addressing these remand issues, the ITC concluded that it was 

unnecessary to “reconsider issues otherwise addressed and affirmed by the Court” in 

JMC I. Id. at 7. In a 4-2 vote, the ITC again determined that subject imports neither 

caused nor threatened to cause material injury to the domestic industry. Id. at 1. 

Plaintiffs now challenge the remand results on three grounds. They contest, as 

unsupported by substantial evidence or not in accordance with law, (1) the ITC’s alleged 

use of the absence of lost sales allegations to support its finding of no negative volume 

effects, (Comments at 11-13); (2) the ITC’s alleged failure to explain why the domestic 

industry’s loss of market share to subject imports did not lead to an affirmative injury 

determination, (Comments at 4-11); and (3) its finding of no correlation between subject 

import volume and the domestic industry’s financial performance, (Comments at 13-25). 

STANDARD OF REVIEW

The standard of review applicable to a challenge to a remand determination is 

the same as that applicable to an original agency determination: the court will uphold an 

agency determination that is supported by substantial evidence and otherwise in 
Court No. 13-00022 Page 11

accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i); Spa v. E.I. Dupont de Nemours, 26 

CIT 1357, 1360-61 (2002), aff’d, Ausimont SpA v. United States, 90 F. App’x 399 (Fed. 

Cir. 2004). Substantial evidence is “‘such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.’” Huaiyin Foreign Trade Corp. (30) 

v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. 

N.L.R.B., 305 U.S. 197, 229 (1938)). “[T]he court may not reweigh the evidence or 

substitute its own judgment for that of the agency.” Usinor v. United States, 28 CIT 

1107, 1111, 342 F. Supp. 2d 1267, 1272 (2004) (citation omitted). 

DISCUSSION

As discussed above, in JMC I, the court remanded the ITC’s determination with 

regard to two issues: (1) the ITC’s treatment of the domestic producers’ lost sales and 

revenue allegations in its price effects analysis and (2) its evaluation of the domestic 

industry in the context of the business cycle. The court affirmed all other aspects of the 

Final Determination. While the court authorized the Commission to reconsider any 

aspect of the Final Determination that relied upon or took into consideration its prior 

findings on the remanded issues, the Commission determined to affirm its original 

findings in the price effects analysis, without considering lost sales and revenue 

allegations, and provided further explanation of the role of the business cycle in the 

domestic industry’s performance. In making those findings, the Commission found it 

unnecessary to reconsider any other aspect of its Final Determination. Therefore, the 

Commission’s findings, apart from the two issues remanded for further consideration, 

are effectively final. 
Court No. 13-00022 Page 12

A. Lost Sales and Revenue Allegations

In JMC I, the court ordered the ITC to reevaluate its treatment of the domestic 

producers’ lost sales and revenue allegations in its price effects analysis to account for 

Plaintiffs’ assertion that they could not provide lost sales and revenue information, in the 

form and manner requested by the Commission, due to the structure of the domestic 

CWP market. The court further concluded that the ITC had, in effect, treated the 

domestic industry’s inability to provide this information as an adverse inference against 

it, without addressing the requirements of 19 U.S.C. § 1677e. 

In the remand results, the ITC expressly abandoned the use of lost sales and 

revenue allegations in the price effects analysis. Remand Views at 10. It noted that the 

court had affirmed its finding that subject imports had no negative price effects on the 

domestic like product and, therefore, concluded that it “ha[d] no need to rely on the 

absence of confirmed lost sales and revenue allegations as further support for these 

findings.” Id. (footnote omitted). The Commission also clarified that it does not make 

adverse inferences against parties for failing to report lost sales and revenue 

allegations; rather, when a party does not submit lost sales and revenue allegation 

reports, “the Commission’s practice has been to rely on the information available, rather 

than resorting to the use of adverse inferences.” Id. at 10-12. 

Because the Commission expressly abandoned any reliance on the lack of 

verifiable lost sales and revenue allegations in making its remand determination, the 

Commission has addressed the court’s concern that the agency improperly used the 
Court No. 13-00022 Page 13

domestic producers’ failure to provide lost sales and revenue allegations as a basis for 

an adverse inference against the domestic industry. 

Plaintiffs now assert that the ITC unlawfully used the absence of lost sales 

allegations to support its finding of a lack of negative volume effects in the remand 

results. (Comments at 11-13.) They aver that the Commission should have treated the 

increase in subject import volume and market share between 2009 and 2011 as 

evidence of lost sales. According to Plaintiffs, by using its longstanding methodology, 

the Commission repeated the error that the court found in the ITC’s price effects

analysis in JMC I, i.e. that it may have failed to account for Plaintiffs’ assertions that 

they could not provide the lost sales information in the form and manner requested by 

the Commission due to the structure of the domestic CWP market and, therefore, made 

an unlawful adverse inference against them. (Comments at 12-13 (citing JMC I, 38 CIT 

at __, 24 F. Supp. 3d at 1304-05).) 

In the Remand Views, the Commission explicitly adopted the volume arguments 

and findings in the Original Views. Remand Views at 7. The Commission did not take 

into account the absence of verifiable lost sales allegations when conducting those 

analyses. See Original Views at 28-29. In fact, in the Remand Views, the language 

that provides the basis for Plaintiffs’ objection merely describes the methodology the 

ITC customarily employs when analyzing lost sales and revenue. Remand Views at 10 

n.40. This explanation of standard practice does not indicate that the Commission used 

the absence of lost sales allegations in its evaluation of subject imports’ volume effects 

as Plaintiffs allege.
Court No. 13-00022 Page 14

In certain prior cases, the court has held that in markets with fungible goods, 

such as CWP, “volume rather than anecdotal evidence may be the best indicator of lost 

sales.” Granges Metallverken AB v. United States, 13 CIT 471, 481, 716 F. Supp. 17, 

26 (1989) (citations omitted). However, the court has never required the Commission to 

examine volume in lieu of anecdotal evidence for such purposes. See Copperweld 

Corp. v. United States, 12 CIT 148, 169-70, 682 F. Supp. 552, 572 (1988) (noting lack 

of any statutory provision requiring ITC to perform any particular type of analysis of lost 

sales or revenue allegations) (citing Me. Potato Council v. United States, 9 CIT 293, 

302, 613 F. Supp. 1237, 1245 (1985)). It is not enough for Plaintiffs simply to proffer an 

alternate methodology to that relied upon by the agency, even if that alternate 

methodology is reasonable and not inconsistent with the statute.

4 Plaintiffs must 

demonstrate that the ITC could not properly rely on its selected methodology, 

something they have failed to do. The court will not disturb the ITC’s analysis of subject 

import volume and market share, notwithstanding the fungible nature of CWP. See 

JMC I, 38 CIT at __, 24 F. Supp. 3d at 1304. 

4 When evaluating challenges to the ITC’s choice of methodology, the court will affirm 

the chosen methodology as long as it is reasonable. Shandong TTCA Biochemistry Co. 

v. United States, 35 CIT __, __, 774 F. Supp. 2d 1317, 1327 (2011) (citing U.S. Steel 

Grp. v. United States, 96 F.3d 1352, 1361-62 (Fed. Cir. 1996)); accord Hynix 

Semiconductor, Inc. v. United States, 30 CIT 1208, 1210, 1215, 431 F. Supp. 2d 1302, 

1306, 1310-11 (2006). When presented with a challenge to the Commission’s 

methodology, the court examines “not what methodology [Plaintiffs] would prefer, but 

. . . whether the methodology actually used by the Commission was reasonable.” 

Shandong TTCA Biochemistry Co., 35 CIT at __, 774 F. Supp. 2d at 1329 (citation and 

internal quotation marks omitted).
Court No. 13-00022 Page 15

The court therefore sustains the Commission’s treatment of lost sales and 

revenue allegations. 

B. The Business Cycle

In JMC I, the court ordered the ITC to explain how it evaluated the relevant 

economic factors bearing on the state of the domestic industry within the context of the 

business cycle, as required by 19 U.S.C. § 1677(7)(C)(iii). Specifically, the court 

ordered the Commission to address whether the improvements in nearly every measure 

of the domestic industry’s performance during the POI may have appeared significant 

due to the economic collapse in 2009 and subsequent economic recovery, thereby 

masking the injurious impact of subject imports on the domestic industry. 

In the remand results, the ITC undertook a two-part analysis of the business 

cycle and its effects on the domestic industry. It first examined the effects of the 

economic recovery on the performance of the domestic industry “in the context of the 

severe economic downturn in 2009 that depressed apparent U.S. consumption to a 

level 37.5 percent below that in 2008, and the weak demand recovery thereafter.” 

Remand Views at 16-17 (footnote omitted) (citations omitted). 

The Commission found that the domestic industry’s performance improved in 

nearly every measure, except market share, capacity, and employment, during the POI, 

even though CWP demand remained weak. Id. at 18 (footnote and citations omitted).

Growth in U.S. consumption led to increased production and U.S. shipments by the 

domestic industry. Id. (citing Staff Report at Tables III-3, IV-9, C-1). Although the 

domestic industry’s market share fell during the POI, the ITC concluded that the 
Court No. 13-00022 Page 16

disproportionate effect of the recession on imports had made the 2009 rate unusually 

high and, therefore, exaggerated the decline in market share. Id. (citing Staff Report at 

Table C-1). 

Although the domestic industry’s capacity fell during the POI, the Commission 

attributed the decline to the recession rather than subject imports. Id. at 19 (citing 

Original Views at 30). Moreover, the decline, in conjunction with increased production, 

boosted the capacity utilization rate, and capital investment remained stable. Id. (citing 

Original Views at 42-43; Staff Report at Tables III-3, C-1)). 

Employment in the domestic industry fell between 2009 and 2011, but hours 

worked and wages paid rose due to increased production and shipments. Id. (citing 

Staff Report at Tables III-7, C-1). From interim 2011 to interim 2012, industry 

employment and wages rose, and hours worked remained steady. Id. at 19-20 (citing 

Staff Report at Tables III-7, C-1). The domestic industry’s productivity was unchanged 

between 2009 and 2011, and peaked in interim 2012. Id. at 20 (citing Staff Report at 

Tables III-7, C-1). 

The domestic prices for three of four pricing products increased during the POI, 

as did the average unit value of the domestic industry’s U.S. shipments, and the 

domestic industry’s COGS to net sales ratio declined. The ITC found these trends 

“[c]onsistent with recovering demand.” Id. (citing Original Views at 30-32).

The ITC found that the domestic industry’s recovering sales and prices directly 

led to improved financial performance. Operating income grew from a loss equivalent to 

negative 15.1 percent of net sales in 2009, to a positive 3.5 percent of net sales in 2010 
Court No. 13-00022 Page 17

and 2.3 percent of net sales in 2011. Id. (citing Staff Report at Tables VI-1, C-1). 

Although the domestic industry did not return to the performance levels that it had 

enjoyed prior to 2008, the Commission concluded that this tempered performance 

stemmed from “the anemic recovery in CWP demand during the POI,” and not subject 

imports. Id. at 21-22 (footnote and citation omitted).

In the second part of its business cycle analysis, the Commission compared the 

effects of the economic downturn and recovery on the domestic industry with those of 

subject imports on the domestic industry to discern “whether subject imports had a 

significant adverse impact on the domestic industry that [was] distinguishable from the ill 

effects of the economic downtown of 2009 and the weak recovery thereafter.” Id. at 23. 

The Commission first noted the absence of “a significant decline in domestic industry 

performance during the POI that could support a significant adverse impact finding.” Id.

It then examined the domestic industry’s performance during the POI and reiterated that 

it improved by most measures, “irrespective of trends in subject import volume, market 

share, and underselling.” Id. Citing to increased U.S. shipments, market share levels 

“that compared favorably to th[ose] during the 2000-2008 period,” higher prices on three 

of four pricing products, rising average unit values of U.S. shipments, higher operating 

income and operating income margins, and lower COGS to net sales ratios, the ITC 

reaffirmed that “[t]hese improvements . . . were consistent with the weak recovery in 

CWP demand during the period.” Id. at 23-24 (footnotes and citations omitted).

Further analysis led the ITC to conclude that the presence of subject imports in 

the domestic market did not significantly affect the domestic industry’s performance. It 
Court No. 13-00022 Page 18

found no correlation between domestic industry performance trends and subject import 

market share or underselling.5 Id. at 24-26. Subject imports took significant market 

share from the domestic industry only between 2009 and 2010, a period which 

coincided with improvement in the domestic industry “by almost every measure,” 

including a swing in its operating income margin from negative 15.1 percent to a 

positive 3.5 percent. Id. at 24 (citing Staff Report at Tables IV-10, VI-1, C-1). Between 

2010 and 2011, subject imports’ 1.4 percent gain in market share occurred “largely at 

the expense of nonsubject imports.” Id. Nevertheless, the domestic industry’s income 

and operating income margin fell. Id. at 25 (citing Staff Report at Tables IV-10, VI-1, C1). The domestic industry’s operating income and operating income margin peaked in 

interim 2011, when the market share of subject imports also peaked, and fell in interim 

2012, although subject import volume and market share fell as well. Id. (citing Staff 

Report at Tables IV-10, VI-1, C-1). 

The Commission also found that the significant underselling by subject imports, 

which occurred throughout the POI, did not significantly depress or suppress the prices 

of the domestic like product. Id. (citing Original Views at 30-32). During the POI, the 

domestic industry increased prices on three of four pricing products, increased the 

average unit value of U.S. shipments, improved the metal margin, and reduced its 

COGS to net sales ratio. Id. at 25-26 (citing Original Views at 30-32). This lack of 

correlation between domestic industry performance and subject import underselling 

5 The court affirmed these findings in JMC I. 38 CIT at __, 24 F. Supp. 3d at 1302-03, 

1309-10.
Court No. 13-00022 Page 19

continued even when accounting for the prevalence and degree of underselling. Id. at 

26 (citing Staff Report at Tables V-1-4, VI-1). Between 2009 and 2010, the domestic 

industry’s performance improved “markedly by most measures,” even though the 

prevalence of subject import underselling rose, and the margin of underselling was at its 

highest point of the POI. Id. (citing Staff Report at Tables V-1-4, VI-1). Although the 

prevalence of underselling increased further in 2011, the domestic industry’s 

performance improved, with the exceptions of its operating income and operating 

income margin. Id. (citing Staff Report at Tables V-1-4, VI-1). The domestic industry’s 

operating income margin reached a peak in interim 2011, despite underselling by 

subject imports in all quarterly comparisons, and that operating income margin declined 

in interim 2012, even though the prevalence and margin of underselling by subject 

merchandise fell. Id. (citing Staff Report at Tables V-1-4, VI-1). 

The Commission examined nonsubject imports and found that they held a higher 

market share, and had lower prices, than subject imports and the domestic like product 

during the POI. Id. (citing Staff Report at Tables IV-3, IV-10, C-1, App. D). According to

the ITC, this data demonstrated that “nonsubject import competition was no less a factor 

in the U.S. market than subject imports.” Id. at 27. For example, the only significant 

decrease in the domestic industry’s operating income and operating income margin 

occurred between interim 2011 and interim 2012, when subject imports lost market 

share to nonsubject imports, and not the domestic industry. Id. (citing Staff Report at 

Tables IV-10, V-I). The ITC thus concluded that the significant presence of competitive 
Court No. 13-00022 Page 20

nonsubject imports in the U.S. market undermined the possibility of a link between 

subject imports and the domestic industry’s performance. Id. at 26.

On the basis of this analysis, the Commission determined that the domestic 

industry’s improved performance during the POI stemmed from the economic collapse 

in 2009 and the subsequent, albeit tepid, recovery. Id. at 27. The presence of subject 

imports, by contrast, “did not significantly impede the domestic industry’s progress.” Id.

In their comments on the Remand Views, Plaintiffs criticize the Commission’s 

business cycle analysis. They do not, however, articulate a challenge to the 

Commission’s methodology or contend, with any specificity, that the agency’s 

determination is not supported by substantial evidence. (See, e.g., Comments at 9-10, 

16.) Rather, it appears that Plaintiffs simply do not like the result of the Commission’s 

analysis. 

The court finds that the Commission satisfactorily accounted for the effects of the 

business cycle on the domestic industry’s performance. The ITC’s analysis cites to 

substantial evidence supporting its analysis of the effects of the business cycle as 

distinct from those of subject imports on the domestic industry. By doing so, the 

Commission “explain[ed] how it has evaluated the impact of subject imports on the 

domestic industry within the context of the business cycle,” as the court ordered in JMC 

I, 38 CIT at __, 24 F. Supp. 3d at 1321, and fulfilled the requirements of 19 U.S.C. 

§ 1677(7)(C)(iii). See Hynix Semiconductor, Inc., 30 CIT at 1226-27, 431 F. Supp. 2d at 

1344 (noting that business cycle analysis aims to ensure that positive business cycle 

trends do not mask unfair trading practices). While Plaintiffs might prefer that the 
Court No. 13-00022 Page 21

Commission had undertaken a different type of analysis with regard to the business 

cycle, the question is whether the Commission’s methodology was reasonable, not 

whether it was the preferred methodology of Plaintiffs. Shandong TTCA Biochemistry 

Co., 35 CIT at __, 774 F. Supp. 2d at 1329. The Commission’s business cycle analysis 

complied with the court’s remand order and the statute; accordingly, the analysis is 

sustained. 

C. Plaintiffs’ Other Arguments

1. The Impact of Product Fungibility on the Commission’s Volume 

Analysis

Plaintiffs maintain that the Commission has an obligation to explain “why the 

negative volume impact of subject imports alone was not sufficient to require an 

affirmative determination under the statutory definition of material injury.” (Comments at 

4, 9-10.) They argue that the fungibility of subject imports with the domestic like product 

ensures that an increase in subject import volumes “would likely be in substantial part” 

at the expense of the domestic industry, particularly its share of the U.S. market.

(Comments at 6-8 & n.8.) Plaintiffs therefore aver that the increase in the volume of 

subject imports during the POI necessitates that the ITC “identif[y] the other evidence 

that nullifies the significance of fungibility so as to support a negative determination.” 

(Comments at 6.) 

Plaintiffs already have raised, (see ECF No. 71 at 13), and the court rejected, the 

argument that the fungibility of subject imports and the domestic like product, in 

conjunction with the increased volume of subject imports during the POI, necessitate a 
Court No. 13-00022 Page 22

negative injury determination or further explanation by the Commission. JMC I, 38 CIT 

at __, 24 F. Supp. 3d at 1298-99. The court will not reconsider these issues here. Kori 

Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir. 1985) 

(“The law of the case doctrine is that courts should generally refuse to reopen what has 

been decided.”) (citation and quotation marks omitted). While the court provided that 

the ITC could have reconsidered this issue on remand to the extent that its prior 

consideration “relied upon or took into consideration [its] prior findings” on the business 

cycle or lost sales and revenue issues, JMC I, 38 CIT at __, 24 F. Supp. 3d at 1305, the 

Commission was not required to reconsider the issue and Plaintiffs’ arguments do not 

suggest otherwise. 

2. The Correlation Between Subject Imports and the Domestic 

Industry’s Financial Performance

Plaintiffs argue that the Commission’s correlation analyses of the effects of 

subject import volume and prices, and the financial performance of the domestic 

industry, are erroneous because the ITC ignored record evidence that indicated the 

contrary. (Comments at 13-25.) 

In JMC I, the court affirmed the Commission’s findings of no correlation between 

subject import volume and the domestic industry’s financial performance, and subject 

import prices and the domestic industry’s financial performance. 38 CIT at __, 24 F. 

Supp. 3d at 1302-03, 1309-11. Plaintiffs’ arguments do not suggest that the 

Commission was required to reconsider these findings on remand and, therefore, the 

court will not reconsider them. Kori Corp., 761 F.2d at 657. 
Court No. 13-00022 Page 23

Conclusion

For the reasons provided above, the court sustains the ITC’s remand results. A 

judgment follows. 

/s/ Mark A. Barnett

Mark A. Barnett, Judge

Dated: May 29, 2015

New York, New York