Slip Op. 12-129

UNITED STATES COURT OF INTERNATIONAL TRADE

ALUMINUM EXTRUSIONS FAIR TRADE COMMITTEE, Plaintiff,

v. UNITED STATES, Defendant,

and AAVID THERMALLOY, LLC,

Defendant-Intervenor. Before: Judith M. Barzilay, Senior Judge

Court No. 11-00205 Public Version

OPINION [Final determination affirmed.] October 11, 2012 Brian E. McGill, King & Spalding LLP, Washington, DC, argued for Plaintiff, The Aluminum Extrusions Fair Trade Committee. With him on the brief was Stephen A. Jones

. Peter L. Sultan , Attorney, Office of General Counsel, U.S. International Trade Commission, Washington, DC, argued for Defendant. With him on the brief were James M. Lyons , General Counsel; Andrea C. Casson , Assistant General Counsel for Litigation; and Geoffrey S. Carlson , Attorney. Sydney H. Mintzer , Mayer Brown LLP , Washington, DC, argued fo r Defendant-Intervenor, Aavid Thermalloy, LLC. With him on the brief was Duane W. Layton

. BARZILAY, Senior Judge: Before the cour t is Plaintiff Aluminum Extrusions Fair Trade Committee’s (“Plaintiff”) motion for judgme nt on the agency record pursuant to USCIT Rule 56.2. Plaintiff challenges the Internationa l Trade Commission’s (“ITC” or “Commission”)Court No. 11-00205 Page 2

final determination that the domestic finished he at sink industry was neither materially injured nor threatened with material inju ry by reason of imports of finish ed heat sinks from the People’s Republic of China. Certain Aluminum Extrusions from China , USITC Pub. 4229, Inv. Nos. 701- TA-475 and 731-TA-1177 (May 2011) (final determin ation). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). For the reasons below, the court affirms the Commission’s

determination.

I. BACKGROUND On March 31, 2010, the Commission initiated an investigation into whether a domestic industry was materially injured or threatened with materi al injury by reason of imports of certain

aluminum extrusions. Certain Aluminum Extrusions from China , 75 Fed. Reg. 17,436 (ITC Apr. 6, 2010) (initiation of investigations). In its pr eliminary determination, the ITC found that “the

current record does not indicate a ny clear dividing line between categ ories of in-scope products . . . .” P.R. 77 at 9. Accordingly, the Commi ssion found that aluminum extrusions constitute an indivisible continuum of like products. P.R. 77 at 10. In November 2010, Defendant-IntervenorAavid Thermalloy, LLC (“DefendantIntervenor” or “Aavid”) filed a notice of entry, P.R. 106, and requested that the ITC seek disaggregated data for heat sinks , a type of aluminum extrusio n, C.R. 147. Aavid argued that heat sinks, aluminum extrusions designed and te sted to cool electronic devices, comprise a separate like product. C.R. 147. The Commissi on circulated for commen t draft questionnaires requesting data on three va rieties of aluminum extrusion: heat sink blanks, fabricated heat sinks,

and finished heat sinks. P.R. 119 at 6-7. The Commission defined fabricat ed heat sinks as “any heat sink blank that has been cut-to-length, prec ision machined, and or ot herwise fabricated to the end product specifications, but not yet tested, assembled into ot her materials, or packaged.”Court No. 11-00205 Page 3

P.R. 119 at 6. By contrast, the agency defined fi nished heat sinks as “t he final product ready to

be sold to electronic manufacturers. Finished heat sinks differ from fabricated heat sinks in that they have been fully test [sic] and assured to co mply with the required en d-use specifications.” P.R. 119 at 6-7. The Commission requested produc tion and import data on aluminum extrusions

as distinct from finished heat sinks and aske d for a comparison between the two. C.R. 262. The Commission issued its final views on May 19, 2011. Certain Aluminum Extrusions from China , 76 Fed. Reg. 29,007 (ITC May 19, 2011). This notice clarified the ITC’s definition of finished heat sinks: “[F]abricated heat sinks , sold to electronics ma nufacturers, the design and production of which are organized around meetin g certain specified thermal performance requirements and which have been fully, albeit no t necessarily individually, tested to comply with such requirements.” C.R. 496 at 32. Re lying on this definition, the Commission found that finished heat sinks and aluminum extrusions constitute separate like products for the purpose of its material injury determination. C.R. 496 at 9. The Commission ba sed its conclusion on the customized thermal resistance propertie s of [finished heat sinks]; the unique aspects of the design, testi ng and production of [finishe d heat sinks]; differences between [finished heat sinks] and other al uminum extrusions in the channels of trade through which they are sold; eviden ce that the thermal management industry is perceived by producers and customers as being different from the general aluminum extrusions industry; and the fact that [finished heat sinks] are sold at much higher prices because of high va lue-added than most other aluminum extrusions.

C.R. 496 at 9. The Commission found that four producers comp rised the domestic finished heat sink industry: Aavid, Alexandria Extr usion, Light Metals, and Wakefiel d Solutions. C.R. 485 at I-15 n.19; C.R. 496 at 17. Turning to its injury anal ysis, the Commission found that the increase in quantity and market share of imported finished h eat sinks was not significant. C.R. 496 at 33. Next, the Commission found, based on quarterly pricing data from [[ ]] Product 7, the onlyCourt No. 11-00205 Page 4

finished heat sink product for which it received pricing data, that subj ect imports were not underselling domestic products. C.R. 496 at 35. The Commission also determined that “there was no correlation between trends in the subject imports and the industry’s condition.” C.R. 496 at 37. Lastly, the Commission found that “the market share of s ubject imports will not imminently increase substantially above that du ring the period examined and that such imports will not likely have significant adverse price e ffects . . . . [and therefore] that the domestic industry . . . is not threatened w ith material injury by reason of imports of finished heat sinks

from China.” C.R. 496 at 40. The Commission issued a negative inju ry determination for

finished heat sinks and this action ensued. II. STANDARD OF REVIEW This court must uphold an agency determination that is supported by substantial evidence

and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i ). Substantial evidence is

“such relevant evidence as a re asonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB , 340 U.S. 474, 477 (1951) (c itation and quotation marks omitted). That plaintiff can point to evidence that detracts from the agency’s conclusion or that there is a “possibility of dr awing two inconsistent conclusi ons from the evidence does not prevent an administrative agen cy’s finding from being support ed by substantial evidence.”

Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966) (citations omitted). Although the court reviews anything in the record that “fairly detr acts from the substantiality of the evidence,” Ta Chen Stainless Steel Pipe, Inc. v. United States , 298 F.3d 1330, 1335 (Fed. Cir. 2002) (citation and quotation marks omitted), “[t]he ITC is not required to explicitly address every piece of evidence presented by the parties, and absent a s howing to the contrary, the ITC is presumed to have considered all of the evidence on the record,” USEC Inc. v. United States , 34 F. App’x 725,Court No. 11-00205 Page 5

731 (Fed. Cir. 2002). “In sum, the Court ‘may not reweigh the evidence or substitute its own judgment for that of the agency.’” Cleo Inc. v. United States , 30 CIT 1380, 1382 (2006) (citation omitted) (not reported in F. Supp.). III. DISCUSSION

A. The Commission’s Like-Product Determination Before proceeding to its material injury analysis, the Commission must define the applicable domestic like product (i.e., “a product which is like, or in the absence of like, most similar in characteristics and uses with, the artic le subject to an investigation”). 19 U.S.C. § 1677(10). In so doing, it generall y considers six factors: “(1) phys ical characteristics and uses; (2) common manufacturing facilities and produc tion employees; (3) interchangeability; (4) customer perceptions; (5) channels of distribution; and (6) price.” Cleo Inc. v. United States , 501 F.3d 1291, 1295 (Fed. Cir. 2007). “The Commission ge nerally disregards mi nor differences, and looks for clear dividing lines between like products.” Nippon Steel Co. v. United States , 19 CIT 450, 455 (1995) (not reported in F. Supp.). Determining whether differences among products are minor or significant is a factual determinati on for the Commission to undertake on a case-bycase basis. Cleo Inc. , 30 CIT at 1383. The Court must, therefore, defer to the Commission’s weighing of the six factors provided its determination is reasonable. See Maine Potato Council

v. United States , 9 CIT 293, 300, 613 F. Supp. 1237, 1244 (1985) . Notably, “[t]he finding of some similarities among the products delineated by the Commission is not sufficient to overturn the determination[] when there is otherwise s ubstantial evidence to s upport its finding.” Chefline Corp. v. United States , 25 CIT 1129, 1134, 170 F. Supp. 2d 1320, 1328 (2001) (alteration in original) (quoting Torrington Co. v. United States , 14 CIT 648, 656, 747 F. Supp. 744, 753 (1990)).Court No. 11-00205 Page 6

The court must initially address two arguments that frame much of the instant dispute. First, Plaintiff argues that the Commission depa rted from prior practic e by carving out from a continuum (all aluminum extrusions) a separate like product (finished heat sinks). Pl.’s Br. 13-

15. Where the Commission has found that no clear dividing lines exist wi thin a continuum of products, the agency will indeed treat that continuum as a sing le like product rather than arbitrarily subdividing it. See Chefline Corp. , 25 CIT at 1136, 170 F. Supp. 2d at 1329. For the

court to find that the Commission de parted from this prior practice, therefore, the agency must first have found the product at issue constitutes a continuum. 1 See id. at 1330 (“Chefline’s claim of departure from prior practice would perhap s have merit if it were the case that the Commission found a ‘continuum’ of domestic products , then ‘artificially di vided’ it by ignoring ‘minor differences’ or ‘competitive realities.’”). This was not the case here. Instead, the

Commission relied on the six afor ementioned factors to conclude that there was a clear dividing line between two separate products: finished heat sinks and alum inum extrusions. C.R. 496 at 9. Plaintiff has identified no applicable prior prac tice from which the Commission departed in this

case and the court cannot remand on that basis. Second, Plaintiff contends that the Comm ission erred by finding a clear dividing line after comparing finished heat sinks and all ot her aluminum extrusions. Pl.’s Br. 14-15, 18, 20, 21. The proper comparison, Plaintiff avers, was between finished heat sinks and their most comparable type of aluminum extrusion, fabricated heat sinks, which are, according to Plaintiff,

identical to finished heat sinks apart from the thermal testing requirement. Pl.’s Br. 14-15, 18, 20, 21. Defendant, in turn, argues that “the appropriate comparis on [for finished heat sinks] is

1 The Commission did find aluminum extrusi ons to be a continuum in the preliminary determination, P.R. 77 at 9-10, but amended this finding in its final dete rmination after engaging in the requisite six-factor analysis, C.R. 496 at 5-9.Court No. 11-00205 Page 7

with those other aluminum extrusions as a whole, not just other heat sinks . . . .” Def.’s Br. 13. In a limited sense, Plaintiff is correct that the commonalities between finished and fabricated

heat sinks are relevant. Th e Commission’s like-product determ ination – which necessarily includes the thermal testing distinction between in-s cope and out-of-scope h eat sinks – is indeed before the court for review. The question is not, however, which products the ITC should have compared finished heat sinks to, but whether the Commission’s finding of a clear dividing line

between finished heat sinks and all other al uminum extrusions is supported by substantial

evidence in the record. It is to this analysis that th e court now turns. 1. Physical Characteristics and Uses

All aluminum extrusions are made from the same series of aluminum alloys. C.R. 496 at 6. The Commission found, however, that the flat surface level for finished heat sinks “is often 1/1000 of an inch per inch, compared to 4/1000 to 14/1000 of an inch per inch for ordinary aluminum extrusions.” C.R. 496 at 6. “The prec ise flatness of [finished heat sinks] allows for close contact between the [finished heat sink] and the heat-generating components for which they have been designed and to which they are at tached . . . .” C.R. 496 at 6. In addition, the

ITC found that finished heat sinks “are also characterized by thei r thermal resistance properties” and their certification “to perf orm within thermal resistance parameters.” C.R. 496 at 7. Acknowledging that these thermal resistance proper ties are not visible, the Commission noted that they are nevertheless relevant to customers’ needs. C.R. 496 at 7. Plaintiff first argues that the Commission fa iled to quantify the pr oportion of finished

heat sinks that have the distinctive 1/1000 of an inch per inch flat surface tolerance, merely stating that they “often” bear such tolerances. Pl.’s Br. 17. Plaintiff also contends that the

Commission discounted evidence that other aluminum extrusions si milarly have a flat surfaceCourt No. 11-00205 Page 8

tolerance of 1/1000 of an inch per inch. Pl.’s Br. 18. An agency’s explanation of its determination need not be perfect, provided it is “reasonably discernible to a reviewing court.” NMB Singapore Ltd. v. United States , 557 F.3d 1316, 1319 (Fed. Cir. 2009) (citation omitted). In addition, as noted, overlap of physical charact eristics is not by itself sufficient to render a determination unsupported. See Chefline Corp. , 25 CIT at 1134, 170 F. Supp. 2d at 1328. In this case, the Commission was presented with ev idence that finished heat sinks must be of precise dimensions and that they generally have a partic ular flat surface tolerance that is crucial to performing the intended task of cooling electronic equipment. C.R. 436 at 8, Attach. A at 6. The Commission acknowledged that this flat surf ace tolerance was not unique to finished heat sinks, but noted that, “from the thousands of diffe rent types of aluminum extrusions, [Plaintiff] cite[d] only two examples (framing for solar mi rror assemblies and locking systems for cockpit doors)” that have a comparable tolerance. 2 C.R. 496 at 6 n.21. This rather scant evidence of overlap is not sufficient to detr act from the Commission’s reliance on record evidence, nor is the

Commission’s use of the inexact term “often.” 3 Though Plaintiff would ha ve the court weigh the evidence differently, sufficient record evidence ex ists to support the findi ng that finished heat sinks are distinguishable based on their flat surfa ce tolerance. Plaintiff also argues that the thermal test ing component of finish ed heat sinks does not serve to differentiate the products based on th eir physical characteris tics. Pl.’s Br. 18.

2 Plaintiff avers that it also identified [[ ]] Pl.’s Br. 18.

3 In regards of comparable flat surface toleranc es in other aluminum ex trusions, Plaintiff avers that “[e]ven one example is enough to establish that [finished heat sinks] are not unique in respect to close fabrication toleranc es.” Pl.’s Br. 18. As discussed infra , however, a like-product determination is not invalidated merely because th ere is some overlapping characteristic between different products. See Chefline Corp. , 25 CIT at 1134, 170 F. Supp. 2d at 1329.Court No. 11-00205 Page 9

Specifically, Plaintiff cites previous determinatio ns in which the Commission declined to use a testing requirement to differentia te a separate like product. Pl .’s Br. 18. Plaintiff’s argument

lacks merit. “The Commission’ s decision regarding the appropria te domestic like product is a factual determination, where the Commission applies the statutory standard of ‘like’ or ‘most similar in characteristics and uses’ on a case-by-case basis.” NEC Corp. v. Dep’t of Commerce , 22 CIT 1108, 1110, 36 F. Supp. 2d 380, 383 (1998). In the case at bar, the Commission reasonably found that the thermal te sting requirement distinguished fi nished heat sinks in regards to their end use, as well as other factors discussed below. Nota bly, the Commission has previously taken into account testing requirements when ma king its like-product finding. See,

e.g. , Automotive Replacement Glass Windshields from China , USITC Pub. No. 3494, 2002 WL 560896 at *22, Inv. No. 731-TA-922 (Final) (Mar. 2002); Certain Brake Drums and Rotors from

China , USITC Pub. No. 3035, 1997 WL 416149, Inv. No. 731-TA-744 (Final) (Apr. 1997). There is no basis, therefore, from which the co urt could conclude that the Commission exceeded the broad scope of its discretion in this matter. Plaintiff also highlights that each of the wi de variety of aluminum extrusion products, not merely finished heat sinks, has a distinct end use. Pl.’s Br. 17. As noted, the court’s review is limited to whether the ITC’s dividing line draw n between finished heat sinks and all other

aluminum extrusions is reasonable on this admi nistrative record. Here , the record contains

evidence that finished heat sinks – tested and certified for heat resistance – have a distinct use customers require for thermal management in electronic devices. P.R. 236 at 166-67. The

Commission exercised its di scretion to interpret this evidence as indicative that finished heat

sinks should be viewed as a se parate like product. Though “ma ny other aluminum extrusions also have distinct individual-use applications ,” C.R. 496 at 7, the scope of the “all otherCourt No. 11-00205 Page 10

aluminum extrusions” like-product category is not befo re the court. Finished heat sinks’ distinct physical characteristics and end use support th e Commission’s like-product determination at

issue in this action. 2. Interchangeability

Plaintiff next notes that all manner of aluminum extrus ions are not interchangeable and that the lack of interchangeability between finish ed heat sinks and all other aluminum extrusions cannot support the like-pr oduct determination. Pl.’s Br. 19. As Plaintiff admits, the Commission did not rely on the interchangeability factor in its like-product determination. C.R. 496 at 7, 9. The ITC need not ascribe any weight to this factor and the court has no basis upon which to question that decision. See Maine Potato Council , 9 CIT at 300, 613 F. Supp. at 1244. 3. Channels of Distribution Plaintiff challenges the Comm ission’s finding that finished heat sinks and aluminum

extrusions are sold in distinct channels of distribution. Pl.’s Br. 20. Plaintiff argues, in particular, that the Commission failed to explain how the applicable end users and distributors –

electronics manufacturers and di stributors of electronics compone nts respectively, C.R. 496 at 7- 8 – distinguish finished heat sinks from heat sinks that are not thermally tested and remain in the aluminum extrusions like-product category (i.e ., fabricated heat sinks ). Pl.’s Br. 20. In the final determination, the Commi ssion relied upon evidence that “[a]luminum

extrusion distributors do not sell [finished heat sinks] and [finished heat sink] distributors do not sell aluminum extrusions.” C.R. 436 at 14-16; C.R. 496 at 8. In particular, the Commission relied on evidence submitted by Aavid that Eastern Metal Supply, Aluminum Shapes, Inc., My Aluminum Supply, and Aluminum Di stributing Inc., all se llers of general aluminum extrusions,

do not sell finished heat sinks . C.R. 436 at 15. Plaintiff fa ils to provide any evidence orCourt No. 11-00205 Page 11

rationale detracting from this record evidence. The Commission’s reliance on this factor to distinguish finished heat sinks is reasonable and therefore sup ported by substantial evidence. 4. Common Manufacturing Facilities a nd Production Processes and Employees Plaintiff next challenges the Commission’ s finding that finished heat sinks are distinguishable based on their manufacturing process and producti on equipment. Pl.’s Br. 20-22. Plaintiff argues that “[t]here is no difference between [finished h eat sinks] and other heat sinks for electronics applications that are not post-pr oduction tested based on th ese design services.”

Pl.’s Br. 21. Plaintiff relies on views from the dissenting ITC commissioners, noting that all heat sinks are subject to the same heat sink bl ank production and subsequent finishing. Pl.’s Br.

21. All types of aluminum extrusions share th e same basic production process: Aluminum billets are heated until soft and “then pushed or squeezed into a precision opening, or die, to produce the desired shape.” C.R. 496 at 8. Th e Commission found that fi nished heat sinks are specifically “held in and fabricated by a com puter controlled milling machine to add holes, clearance pockets, and attachment points for heat generating devices.” C. R. 496 at 8. Of note, the final determination explains the relevance of thermal resistance testing to differentiating

finished heat sinks: Specialized equipment, including wind tunne ls, flow calibration equipment, testing equipment, and specialized design and data collection software, are used to design [finished heat sinks] and to produce prototypes. Highly tr ained employees manage the [finished heat sink] design and testing equi pment. Substantial thermal analysis and testing are associated with the front end of [finished heat sink] production. C.R. 496 at 8. In its determination, the Commi ssion cited testimony from Aavid Vice President Norm Soucy detailing the equipm ent and expertise required to tr ansform heat sink blanks and

fabricated heat sinks into fini shed heat sinks, C.R. 496 at 8 (citing P.R. 239 at 172-173), and wasCourt No. 11-00205 Page 12

presented with diagrams and expl icitly labeled photographs of th e requisite testing equipment, C.R. 436 Attach. A; C.R. 459 Attach. F.

The record demonstrates that there are i ndeed differences in the production process between the two products. The ITC reasonabl y concluded that specialized equipment, procedures, and personnel involved in testing and certifying finished heat sinks distinguish them from other aluminum extrusions, including (non-tested ) fabricated heat sinks. Plaintiff fails to support its claim to the contrary. Accordingly, th e ITC’s determination on this issue is supported by substantial evidence. 5. Customer and Producer Perceptions The Commission also found that, “[a]lthough most U.S. producers and importers of aluminum extrusions generally reported that [fini shed heat sinks] and other aluminum extrusions are comparable in terms of customer perceptions, there is evidence in the record that customers and producers of [finished heat sinks] perceive them to be di stinct from other aluminum extrusions.” C.R. 496 at 8. As an example, th e ITC cited “a number of customers” as well as Wakefield, which indicated that they “separate[ ] [their] production of [f inished heat sinks] and

other aluminum extrusions into different lines of business.” C.R. 496 at 8-9. Plaintiff argues that this findi ng is not based on substantial ev idence given that a majority of producers and importers, including [[ ]], stated that the two products are comparable. Pl.’s Br. 16, 22-23. Plaintiff also argue s that in making its determination the Commission impermissibly re lied on customer perception data from only [[ ]]. Pl.’s Br. 24. Though most respondents did indicate that finished heat sinks and alumin um extrusions are perceived as comparable, the Commission cited evidence that several customers [[Court No. 11-00205 Page 13

]]. C.R. 496 at 9 (citing C.R. 436 at 18). The Commission has the right to ma ke credibility determinations and to resolve conflicts in the evidence, Chung Ling , 16 CIT at 648, 805 F. Supp. at 55, and “[s]ubstantial evidence does not require th at the overwhelming weight of the evidence support the

Commission’s conclusion.” Torrington Co. , 14 CIT at 656, 747 F. Supp. at 753 (citations omitted). Here, the Commission acknowledged that most customers’ and importers’ perceptions did not serve to distinguish the two products. C.R. 496 at 8-9. Had the Commission relied more heavily on this prong, the fact that most producer s and importers described the products as alike might lend more support to Plaintiff’s request for a remand. It did not, however. Instead, this factor appears not to have we ighed heavily in the ITC’s analysis and the agency makes no conclusion regarding this factor that is not supported by r ecord evidence. The Commission merely noted that some responses indicated that the two products are perceived as distinct and

there is no valid reason to re mand on that basis. Plaintiff also argues that the determination is unreasonable as it reli ed on an out-of-date response from Wakefield. Pl.’s Br. 23. Plaintiff avers that, [[

]]. Pl.’s Br. 23. The record does no t support this argument. It is true that [[Court No. 11-00205 Page 14

]] Plaintiff’s argument is thus without merit.

6. Price For the final factor, price, the Commission compared the average unit value (“AUV”) of

aluminum extrusions with that of finished heat sinks and determined that the AUV of finished heat sinks ([[ ]]) was [[ ]] higher than the AUV of ot her aluminum extrusions ([[ ]]). C.R. 496 at 9. The Commission further concluded that this price differential “is

attributable to the value added in the labor-int ensive [finished heat sink] production process.” C.R. 496 at 9. Finally, the Commi ssion noted that finished heat si nks “are priced on a different basis than other aluminum extrusions; [Finished heat sinks] are sold by piece, whereas aluminum extrusions are typically sold on the basis of a metal price plus a per pound fabrication charge.”

C.R. 496 at 9. Plaintiff first argues that th is finding is unreasonable because the Commission lacked data on the pricing of non-tested heat sinks. Pl.’s Br. 24. Plaintiff conte nds that the Commission could not properly support its diffe rentiation of finished heat sinks because it failed to compare prices for in-scope and out-of -scope heat sinks. Pl.’s Br. 24. The Commission bears the duty only of considering all record evidence and issuing a finding reasonably based thereon. See 19Court No. 11-00205 Page 15

C.F.R. § 207.4(a) (“The Co mmission need not consider in its determinations or include in the record any material that is not fi led with the Secretary.”). Plaint iff’s argument asks the court to remand the like-product finding based on evidence not in the record. Plaintiff speculates that this evidence would undermine the ITC’s determination, but this is not a valid basis for a remand. Plaintiff also challenges the determination on the grounds that pri ces for all aluminum extrusions (including finished heat sinks) vary based on the amount of fabrication. Pl.’s Br. 24- 25. Plaintiff relies on [[

]] 4 Plaintiff summarizes its argume nt as follows: “[Finished heat sinks] are no different than ot her aluminum extrusions beca use the ultimate prices are determined by the metal cost and extent of fabrica tion.” Pl.’s Br. 25. It seems, however, that the

conclusion to be drawn is that finished heat sinks do differ from other aluminum extrusions because of their particular production- and finish ing-based pricing. The thrust of Plaintiff’s challenge (that all manner of aluminum extrusio ns can be differentiated on this basis) seems

directed more at the curious breadth of the “a ll other aluminum extrusion” like-product category

4 Plaintiff also argues that, in its [[ ]] The Commission is, however, presumed to have considered this evidence and the court does not find the views of a single producer sufficiently detracting from the record evidence the Commission did rely upon so as to warrant a remand.Court No. 11-00205 Page 16

than the validity of distinguishing finished heat sinks on this basis. It is again necessary to note that it is the latter, and not the former, that is before the court for review. Finally, Plaintiff argues that the Commissi on’s price finding is undermined by the fact

that certain other extrus ions are similarly priced on a per-p iece basis. Pl.’s Br. 25-26. As discussed above, a Commission’s like-product dete rmination is not invalidated merely because there is some overlap between different type s of products. In this case, the Commission compared the AUV of aluminum extrusions with th at of finished heat sinks, and noted that finished heat sinks are sold by the unit while alum inum extrusions are generally sold by the short

ton. C.R. 496 at 9. The Commission’s determinati on that pricing of finish ed heat sinks supports a separate like-product determination is reasonabl e. Based on the six factors discussed above, the Commission reasonably concluded th at producers of finished heat sinks constitute a separate domestic industry for purposes of its material in jury analysis and the court may not question this

determination. B. The Commission’s Negative Ma terial Injury Determination

Section 1677 tasks the Commission with determining whether subject imports are causing material injury to the domestic indus try. 19 U.S.C. § 1677(7). To make this determination, the ITC must consider “(I) the volu me of imports of the subject merchandise, (II) the effect of the imports of that merchandise on the prices in the United States for domestic like products, and (III) the impact of im ports of such merchandise on domestic producers of domestic like products, but only in the context of production operations within the United States . . . .” § 1667(7)(B)(i)(I)-(III). In this case, the Commission concluded that the volume of subject imports had increased during the period of invest igation, but not significan tly, that the subject imports were not underselling or suppressing prices of domestic like products , and that the trendsCourt No. 11-00205 Page 17

in subject imports did not correlate with the pe rformance of the domestic industry. C.R. 496 at 33-36. Plaintiff contests these findings. 1. Volume of Imports “In evaluating the volume of imports of merchandise, the Commission shall consider whether the volume of imports of the merchandise , or any increase in that volume, either in absolute terms or relative to production or consum ption in the United States, is significant.” § 1677(7)(C)(i). In this case, the Commissi on relied on import volume data submitted in questionnaire responses by [[ ]] and compiled in Table E-2 of the staff report. C.R. 485 at I-15 n.19, E-4. Agency staff received questionnaire responses from other importers as well, but c oncluded that the volume data contained therein were either “incomplete or contained discre pancies.” C.R. 485 at I-15 at n.19. The Commission noted that the quantity of finished heat sink imports decreased from [[ ]] short tons in 2008 to [[ ]] short tons in 2009 and increased to [[ ]] short tons in 2010. C.R. 496 at 33. The market share of subject imports increased from [[ ]] percent in 2008 to [[ ]] percent in 2009 to [[ ]] percent in 2010, while the ratio of imports to domestic production remained at [[ ] percent in 2008 and 2009 and increased to [[ ]] percent in 2010. C.R. 496 at 33. The Commission concluded that subject import vol ume and corresponding market shar e, as well as the increase thereof, were not significant. C.R. 496 at 33. Plaintiff argues that this findi ng is not supported by substantia l evidence. Pl.’s Br. 26. Plaintiff first contends that it was impr oper for Commission to rely on data from [[ ]] importers’ questionnaire respons es and that it failed to se nd importer questionnaires to [[

]]. Pl.’s Br. 26. Defendant and Defendant-Intervenor argue that Plaintiff failed toCourt No. 11-00205 Page 18

exhaust this argument as it di d not challenge the importer data in Table E-2 before the Commission. Def.’s Br. 25; Def.-Intervenor’s Br. at 26-27. In response, Pl aintiff refers to its posthearing administrative brief, in which it argued that [t]he total size of the heat sink market is mu ch larger than what Aavid would lead the Commission to believe. The Appendix E heat sink aggregate data are an unreliable gauge of the performance of a putative [finish ed heat sink] industry because they do not reflect the [finished heat sink] industry or market in the United States. . . . [T]he market is far larger than the data presented in [T]able E-1. . . . [[

]]. C.R. 457, Answers at 26-27. Exhausting administ rative remedies requir es parties to make specific arguments before the appropriate agency prior to raising those arguments before the

Court. See Rhone Poulenc, Inc. v. United States , 899 F.2d 1185, 1191 (Fed. Cir. 1990). Merely discussing a general issue will not serve this purpose. Id. Though Plaintiff contested Appendix E in its posthearing brief, its argument is directed at the Commission’s data on domestic consumption of finished heat sinks, not volume of imports. Plaintiff has not identified any instance in which it specifically challenged the data on record in Table E-2. Because Plaintiff did not raise this argument below, the cour t finds that this ar gument is precluded. 5

5 It is unlikely this argument would have re ndered the Commission’s finding unsupported by substantial evidence. The Commission has no obligation to collect a perfect data set. See United States Steel Grp.—A Unit of USX Corp. v. United States , 18 CIT 1190, 1203, 873 F. Supp. 673, 688 (1994) (holding that the ITC “i s not required to gather 100% coverage in the questionnaire responses before it can make a determination”). “The applicable standard is ‘not whether the Commission might have obtained additional info rmation, but whether the determination is supported by substantial evidence on the record and according to law.’” Id. (citation omitted). In this case, the Commission sent que stionnaires to the firms that Pl aintiff identified in its petition and to firms that had imported more than one percent of total imports under the relevant subheadings of the Harmonized Tariff Schedul e of the United States since 2008, ultimately obtaining data representing 93.3% of total subj ect imports using the questionnaires, and found that [[ ]] questionnaire responses were usable. C. R. 485 at I-15 n.19, IV-1 n.2. This is a plainly reasonable exercise of th e Commission’s statutory duty.Court No. 11-00205 Page 19

Plaintiff also argues that the Commis sion’s determination is undermined by [[

]], which demonstrates that the Commission underestimated the increase in subject import volume. Pl.’s Br. 27. Finally, Plaintiff argues that pu rchaser questionnaire responses indicate that purchases of imported finished heat sinks [[ ]], and that [[ ]]. Pl.’s Br. 28, Ex. 1. Plaintiff argues that the determinatio n cannot be supported by substantial evidence as

the Commission failed to address these contradictory data. Pl.’s Br. 27. Again, Defendant-Intervenor argu es that Plaintiff failed to raise these arguments before the Commission and may not do so now. Def.-Interv enor’s Br. 26-27. In th is instance, however, the record does not support this argument. In its posthearing admini strative brief, Plaintiff stated

that [[ ]] C.R. 457 at 12. Plaintiff also provided data show ing that domestic finished heat sink purchasers had noticeably shifted thei r purchases from domestic to impor ted finished heat sinks during the period of investigation. C.R. 457 at 12-13. “While a plaintiff cannot circumvent the requirements of the doctrine of exhaustion by mere ly mentioning a broad issue without raising a particular argument, plaintiff’s br ief statement of the argument is su fficient if it alerts the agency to the argument with reasonable clar ity and avails the agency with an opportunity to address it.”Court No. 11-00205 Page 20

Luoyang Bearing Corp. v. United States , 28 CIT 733, 761, 347 F. Supp. 2d 1326, 1352 (2004). Plaintiff’s challenge leaves much to be desired in terms of the specificity with which it is framed. The court finds, however, that noting [[ ]] and the rise in purchases of imported finish ed heat sinks was sufficient to alert the Commission to this argument. Whether the Commission was required to addres s these data, however, is another matter. Defendant and Defendant-Intervenor each respo nd that the Commission does not generally use export data to measure import volume because thes e data do not account for merchandise entered for reasons other than consumption (i.e., transsh ipments) and may reflect imports that shipped during the year in review but a rrived the following year. Def.’s Br. 26; Def.-Intervenor’s Br. 28. Regarding the purchaser questionnaire da ta, Defendant-Interve nor notes that [[

]] “The ITC enjoys broad discretion to choose a methodology for measuring volume.” Int’l Imaging Materials, Inc. v. U.S. Int’l Trade Comm’n , 30 CIT 1181, 1189 (2006) (citation omitted) (not reported in F. Supp.); see Nippon Steel Corp. v. United States , 458 F.3d 1345, 1359 (Fed. Cir. 2006) (“So long as there is adequate ba sis in support of the Commission’s choice of evidentiary weight, the [Court], and [the Fede ral Circuit], reviewi ng under the substantial evidence standard, must defer to the Commission.”). “The use of importer questionnaire data toCourt No. 11-00205 Page 21

calculate subject import volumes is a we ll-established and accepted practice.” Celanese Chems.,

Ltd. v. United States , 31 CIT 279, 288 (2007) (not reported in F. Supp.). Moreover, the Commission is presumed to have co nsidered all evidence on the record, Nucor Corp. v. United

States , 28 CIT 188, 234, 318 F. Supp. 2d 1207, 1247 (2004) , though it “must address significant arguments and evidence which seriously unde rmine[] its reasoning and conclusions,” Altx, Inc. v.

United States , 25 CIT 1100, 1117-18, 167 F. Supp. 2d 1353, 1374 (2001). The Commission is presumed to have considered the effect of the [[ ]] and purchaser questionnaire responses, and Pl aintiff has proffered nothing to rebut this presumption. In addition, the Commission was with in its discretion to re ly on actual import data to measure volume. [[ ]] export data does not seriously undermine the data compiled in Table E-2 because, as Defendant su ccinctly notes, “the two data sets measure different things.” Def.’s Br. 26. Similarly, the court cannot conclude that the purchaser questionnaire data seriously undermined the Co mmission’s conclusion. In deed, the discrepancy in the volume data may be explained by th e ITC’s exclusion of import data from [[ ]] companies because their questionnaires were inco mplete and contained discrepancies. C.R. 485 at I-15 n.19. Moreover, remanding on this basis would require the court to determine that [[

]]. Plaintiff has given no reasoned basi s upon which the court could make such an interpretive leap. Because the Commission reasona bly interpreted the import data before it, the court will not disturb this finding.Court No. 11-00205 Page 22

2. Price Effect “In evaluating the effect of imports of [subject] merchandise on prices, the Commission shall consider whether -- (I) there has been significant price unde rselling by the imported merchandise as compared with the price of domes tic like products of the United States, and (II) the effect of imports of such merchandise otherwise depresses prices to a significant degree or prevents price increases, which otherwise woul d have occurred, to a significant degree.” § 1677(7)(C)(ii). In the final de termination, the Commission relied on comparative pricing data from [[ ]] Product 7. C.R. 485 at V-6; C.R. 496 at 35. Product 7 yielded only one quarter of overlapping data between domestic and import prices, during which time subject imports oversold the domestic like product by [[ ]] percent. C.R. 496 at 35; C.R. 485 at V-14. The data also reveals, however, that domestic prices decrease d dramatically in the third (overlapping) quarter of 2009, after which time the onl y pricing data available is for [[ ]] imported, rather than domestic, finished heat sinks. C. R. 485 at V-14. The agency recognized the limited nature of the data and acknowledged that all th e data were associated with the imports and domestic sales of just one company. C.R. 496 at 35. It noted, however, that the domestic industry’s cost of goods sold (“COGS”) decreased from [[ ]] percent in 2008 to [[ ]] percent in 2010, further “suggest ing that prices were not be ing significantly suppressed in

relation to costs.” C.R. 496 at 35. The Commissi on concluded that these data did not suggest significant price underselling or suppression. C.R. 496 at 35. Plaintiff argues that the Comm ission misread the quarterly sa les price analysis regarding

Product 7. 6 Pl.’s Br. 29. Specifically, Pl aintiff points to the dramatic reduction in domestic price

6 Defendant argues that Plaintiff is estopped under the doctrine of exhaustion from challenging the Commission’s reliance on Product 7 data. De f.’s Br. 29. Defendant argues that Plaintiff failed to proffer any alternative pricing data and merely expressed a vague concern with theCourt No. 11-00205 Page 23

in the third quarter of 2009 (as well as the minor price reductions in previous quarters) and suggests that the shift in Product 7 pricing data to imported finish ed heat sinks establish that [[ ]] Pl.’s Br. 29.

Plaintiff thus believes that the Commission’ s interpretation of th e Product 7 was unfounded.

Pl.’s Br. 30. “[E]ven if it is possible to draw two inconsis tent conclusions from evidence in the record, such a possibility does not prevent [the Comm ission’s] determination from being supported by

substantial evidence.” Nippon Steel Corp. , 458 F.3d at 1352 (quoting Am. Silicon Techs. v.

United States , 261 F.3d 1371, 1376 (Fed. Cir. 2001)). The shift in pricing data from domestic to imported finished heat sinks is, as Plaintiff sugge sts, noticeable. So too is the drastic drop in domestic price in the only quarter with comparable pricing data and the su bsequent low price of imported heat sinks thereafter. C.R. 485 at V-14. The court’s duty is not, however, to adjudicate the merits of Plaintiff’s interpretation of th e pricing data but rath er to ask whether the

Commission’s determination on the basis of that data is adequately supported. It is. The Commission found that in the sole quarter of co mparable pricing data, subject imports oversold their domestic counterparts. The Commission recognized the limitations in its data, but

buttressed its conclusion with reliance on the ratio of COGS to net domestic sales, which, as noted, demonstrates that prices were not being suppressed in rela tion to costs. Although there

narrow scope of Product 7 data in a footnote in its prehearing brief. C.R. 435 at 41 n.165 (“Based on the data, it seems clear that this product [[ ]]”). The court reads Plainti ff’s brief somewhat differently, however. Before this court, Plaintiff a ppears only to challenge the Commission’s analysis of the pricing data and not its reliance on Product 7 per se. Pl.’s Br. 29. Defe ndant does not contend (nor could it) that Plai ntiff failed to exhaust its current chal lenge to the Commission’s analysis of the pricing data. C.R. 435 at 41.Court No. 11-00205 Page 24

are limited data points on this issue (which is unfortunate), the Commi ssion’s determination is affirmed, given the evidence presented in the record. 7 Plaintiff also argues that the Commission failed to consider [[ ]] that demonstrate underselling and loss of domestic sales as a result of imports. Pl.’s Br. 30. Specifically, Plaintiff argues that [[

]. Pl.’s Br. 30-32. Additionally, Plaintiff points to evidence that [[ ]]. Pl.’s Br. 32-33. This argument is not persuasive. As with its volume of import investigation, “the ITC has broad discretion in selecti ng the appropriate analysis or methodology to apply to its review of subject import price effects.” Hynix Semiconductor, Inc.

v. United States , 30 CIT 1208, 1215, 431 F. Supp. 2d 1302, 1310-11 (2006). Though Plaintiff relies on a different body of evidence to conclude there were price effects, Plaintiff fails to show that the Commission’s interpretation of its c hosen data set (Product 7 pricing data) was

unreasonable. It is not with in the court’s discretion to question the agency’s chosen methodology, if it is reasonable, as it is here, nor draw its own conclusions from the evidence. 3. Impact of Imports Section 1677 directs that, “[i] n examining the impact [of subject imports on domestic producers], the Commission shall ev aluate all relevant economic f actors which have a bearing on the state of the industry in the United States . . . .” § 1677(7)(C)(iii). Relying on domestic

7 Plaintiff also avers that the Commission impr operly did not use Product 7 import data reported by [[ ]]. Pl.’s Br. 30. The record shows, however, that [[ ]] As such, this merchandise was not within the scope of the investigation, C.R. 496 at 4, and the Commission was under no obligation to include the data in its analysis.Court No. 11-00205 Page 25

producer data in Table E-1, the Commission dete rmined that the domestic industry’s capacity remained the same throughout the period of i nvestigation. C.R. 496 at 36. It also found, inter

alia , that the industry’s production, ca pacity utilization, domestic ship ments, net sales, net sales value, and operating income all declined be tween 2008 and 2009 before recovering somewhat in 2010. C.R. 496 at 36-37. The industry’s aver age number of workers declined from [[ ]] in 2008 to [[ ]] in 2009 to [[ ]] in 2010, and wages decreased from [[ ]] in 2008 to [[ ]] in 2009 and 2010. C.R. 496 at 37. The Commission conclude d that, “[a]lthough

the indicators of the domesti c industry’s condition declined from 2008 to 2009 and, in many cases, remained lower in 2010 than they had been in 2008, there was no correlation between trends in the subject imports and the industry’ s condition. For example, subject import volume and market share were highest in 2010, when ma ny of the domestic industr y’s indicators showed improvement.” C.R. 496 at 37. Plaintiff argues that the ITC’s domestic industry data in Tabl e E-1 is flawed because of the purportedly inconsistent defini tions of finished heat sink gi ven throughout th e investigation. 8

Pl.’s Br. 33. Plaintiff contends that the Commission meani ngfully altered the definition of finished heat sinks by amending the “fully test (sic) and assured” component provided in the questionnaires to “fully, albeit not necessarily individually, tested ” in the final scope definition.

Pl.’s Br. 33-34. Plaintiff contends that, because of this revised de finition, “[i]t is possible that

8 Defendant avers that Plaintiff waived its ch allenge to the Commission’ s finished heat sink aggregate data because Plaintiff admitted that Table E-1 of the Commission’s Staff Report “reflects the . . . testing parameters imposed by Aavid’s like-product defini tion.” Def.’s Br. 38. Although Plaintiff admitted that Table E reflected the testing parameters, it referred to those same testing parameters as “arbitrary a nd unfounded,” C.R. 492 at 12, signaling clear disagreement with the scope of the ITC’s definition of finished heat sinks. Plaintiff’s challenge to the definition of finished heat sinks forms the foundation for its challenge to the Commission’s aggregation. Moreover, as discus sed, Plaintiff challenged the Table E-1 in its post-hearing brief. C.R. 457, Answers at 26.Court No. 11-00205 Page 26

some domestic producers that were excluded from the industry based on app lication of the strict ‘fully tested and assured’ requirement [in the ITC’s questionnaire definition] should have been included within the industry because they pe rform sample post-product ion testing,” thereby satisfying the definition in the final determination. Pl.’s Br. 34. Plaintiff also suggests that some Aavid heat sinks were improperly included in th e production data as it admitted that it does not perfect testing on each heat sink it produces. Pl.’s Br. 35. A plain reading of the two definitions provided for finished heat sinks reveals that the Commission ne ver required that each finished

heat sink be individually thermally tested. In its final de termination, the Commission correctly noted that the definition it adopt ed “clarifies the definition used in the questionnaire,” and that “the dataset [the ITC] collected for [its] determinations is consistent with [the questionnaire definition].” C.R. 496 at 32 n.165. Plainti ff’s argument is therefore without merit. 9 Plaintiff also argues that do mestic production data from [[ ]] was improperly included based on a confusion regard ing this shifting definition of in-scope heat sinks. Pl.’s Br. 34. Plaintiff avers that [[ ]] Plaintiff is mistaken. In its email, reproduced in part above, [[ ]] committed the same error that Plaintiff does by interpreting the questionnaire defi nition of finished heat sink as requiring that every heat sink be individual tested. As noted, th is was not the case. Indeed, [[

]] C.R. 478. Though

9 Plaintiff further argues that the data aggregations are unr eliable because the Commission [[ ]]. Pl.’s Br. 34. Plaintiff is mistaken. Although [[ ]], the Commission intentionally excluded its responses from the data aggregation because [[ ]] did not indicate that it thermally tests their heat sinks, C.R. 394, and hence they we re not within the scope of the investigation.Court No. 11-00205 Page 27

[[ ]] itself appears somewhat confused by the Commission’s original definition, inclusion of its productio n data was not erroneous. Plaintiff next argues that other reco rd evidence renders the Commission’s finding unsupported. Specifically, Plaintiff notes that [[

]]. Pl.’s Br. 36. Additionally, Plaintiff ar gues that evidence suggests that [[

]]. Pl.’s Br. 37. The ITC has the “discret ion to make reasonable interpretations of the evidence and to determine the overall signifi cance of any particular fact or in its analysis.” Goss Graphics Sys., Inc. v. United States , 22 CIT 983, 1004, 33 F. Supp. 2d 1082, 1101 (1998) (citation omitted). Plaintiff has proffered not hing to suggest that the Commission did not consider this (lightly) detracting evidence, and th e court does not consider these data sufficiently significant as to warrant a remand for explanation. It was reasonable, based on the data in Table E-1, for the Commission to conclu de that the domestic industr y was not injured by reason of subject imports. 10

C . The Commission’s Negative Threat of Material Injury Determination Finally, Plaintiff argues that the Commissi on’s negative threat of material injury

determination failed to account fo r evidence tending to show that subject imports may threaten the domestic industry in the future. Pl.’s Br. 38-40. Defendant-Intervenor argues that Plaintiff

failed to exhaust its administrative remedies by not arguing before the Commission that the

10 Plaintiff also argues that the Commission’s fi nding regarding the impact of subject imports was flawed as it underestimated the true volume of imports. Pl.’s Br. 33. As the court discusses above, however, the Commission’s finding rega rding volume was supported by substantial evidence.Court No. 11-00205 Page 28

record supports an affirmative threat of material injury determination. Def.-Intervenor’s Br. 38. “[T]his Court has ‘generally take[n] a strict view of the need [for parties] to exhaust [their] remedies by raising all arguments’ in a timely fashion so that they may be appropriately addressed by the agency.” Consolidated Fibers, Inc. v. United States , 32 CIT 855, 574 F. Supp. 2d 1371, 1379 (2008) (alternations in or iginal) (citation omitted). In this case, Plaintiff has not identified any instance in which it specifically argu ed the issue of material threat to the domestic finished heat sink industry befo re the Commission. Pl.’s Reply 14- 15; Pl.’s Citations to the R. 7- 8. At best, Plaintiff is able to refer to a passage in its posthea ring brief concerning the plans of [[ ]] Exports of finished heat sinks from China [[ ]] In sum, the record establishes a dramatic shift of [finished heat sink] purchases to China from U.S. producers due so lely to underselling. C.R. 457 at 13 (footnotes omitted). Noting the e ffect of imports on a single producer in the context of existing injury due to underselling is not sufficient to alert the agency with reasonable clarity that Plaintiff is questio ning its threat of material inju ry finding. This challenge is therefore precluded. IV. CONCLUSION For the foregoing reasons, the Commission’s de termination is affirmed. The court will enter judgment accordingly.

Dated: __October 11, 2012__ /s/ Judith M. Barzilay____ New York, NY Judith M. Barzilay, Senior Judge