Awp Industries, Inc. v. United States

Slip Op. 11-81

UNITED STATES COURT OF INTERNATIONAL TRADE

AWP INDUSTRIES, INC.,
ITC MANUFACTURING, INC.,
J&L WIRE CLOTH, INC.,
NASHVILLE WIRE PRODUCTS MFG. CO.,
INC.,WIREWAY HUSKY CORPORATION,

Plaintiffs,

Before: Pogue, Chief Judge
v.
Court No. 10-00250
UNITED STATES,

Defendants, Public Version

– and –

DALIAN EASTFOUND METAL PRODUCTS
CO., LTD., DALIAN EASTFOUND
MATERIAL HANDLING PRODUCTS CO.,
LTD., WORLDWIDE MATERIAL HANDLING
PRODUCTS, LLC,

Defendant-
Intervenors.

OPINION

[Plaintiffs’ motion for judgment on the agency record is DENIED;
judgment entered for Defendant.]

Dated: July 12, 2011

Kelley Drye & Warren LLP (Kathleen W. Cannon and R. Alan
Luberda)for Plaintiffs.
Court No. 10-00250 Page 2

James M. Lyons, General Counsel, U.S. International Trade
Commission; Andrea C. Casson, Assistant General Counsel for
Litigation; (Charles A. St. Charles), Office of the General
Counsel, for Defendant.

DeKieffer & Horgan (Gregory S. Menegaz and Marc E.
Montalbine)for Defendant-Intervenors.

Pogue, Chief Judge: In this action, Plaintiffs seek review

of the International Trade Commission’s (“the Commission”)

finding of no material injury, or threat thereof, to the domestic

industry, as a result of imports of wire decking from China.

Plaintiffs challenge, as unsupported by substantial evidence in

the record, the following five factual determinations (the

“subsidiary findings”) relevant to the Commission’s ultimate

negative determination: 1) the Commission’s choice of

questionnaire response data to determine subject import market

share; 2) the Commission’s determination that subject imports

were not suppressing domestic prices to a significant degree; 3)

the Commission’s conclusion that the domestic industry’s

declining performance was largely due to a decline in demand for

wire decking; 4) the Commission’s reliance on Chinese producer

questionnaire responses in its determination regarding Chinese

capacity; and 5) the Commission’s determination that the largest

importer of wire decking had ceased operations.

As explained below, the court concludes that the

Commission’s five subsidiary findings do not reflect an

unreasonable reading or analysis of the record evidence regarding
Court No. 10-00250 Page 3

the economic conditions affecting the domestic industry during

the Commission’s 2006-2009 period of review. Accordingly, the

Commission’s decision is affirmed.

JURISDICTION

The court has jurisdiction over this case pursuant to

28 U.S.C. § 1581(c).1

BACKGROUND

The economic conditions affecting the domestic industry are,

of course, the critical focus for a Commission’s determination of

whether a U.S. industry is being materially injured, or

threatened with material injury, by reason of subject imports.

See 19 U.S.C. § 1671d(b).2 Specifically, in making its final

determination, the Commission is required to consider the volume

of subject imports, their effect on prices in the United States

for the domestic like product, and the impact on domestic

1
28 U.S.C. § 1581(c)(2006) grants this court “exclusive
jurisdiction of any civil action commenced under section 516A of
the Tariff Act of 1930[,]” including the review of a negative
injury determination made by the Commission. See 19 U.S.C.
§ 1516a(a)(2)(A)(ii)(I),(a)(2)(B)(ii). All further citations to
the Tariff Act of 1930 are to Title 19 of the United States Code,
2006 edition.
2
Under the “by reason of” standard of causation, subject
imports must have more than an “incidental, tangential or
trivial” effect on the industry. See Nippon Steel Corp. v. Int’l
Trade Comm'n, 345 F.3d 1379, 1381 (Fed. Cir. 2003); see also
Gerald Metals, Inc. v. United States, 132 F.3d 716, 721-22 (Fed.
Cir. 1997); Mittal Steel Point Lisas Ltd. v. United States, 542
F.3d 867, 873 (Fed. Cir. 2008).
Court No. 10-00250 Page 4

producers within the context of U.S. production, see 19 U.S.C. §

1677(7)(B). Additionally, in examining the impact of subject

imports, the Commission “evaluate[s] all relevant economic

factors which have a bearing on the state of the industry in the

United States[.]” 19 U.S.C. § 1677(7)(C)(iii).3

The Commission’s review of the economic conditions affecting

the domestic industry covers the three-year period prior to the

3
In examining the impact required to be considered under
subparagraph (B)(i)(III), the Commission shall evaluate all
relevant economic factors which have a bearing on the state of
the industry in the United States, including, but not limited to-

(I) actual and potential decline in output, sales, market
share, profits, productivity, return on investments, and
utilization of capacity,

(II) factors affecting domestic prices,

(III) actual and potential negative effects on cash flow,
inventories, employment, wages, growth, ability to raise capital,
and investment,

(IV) actual and potential negative effects on the existing
development and production efforts of the domestic industry,
including efforts to develop a derivative or more advanced
version of the domestic like product, and

(V) in a proceeding under part II of this subtitle, the
magnitude of the margin of dumping.

The Commission shall evaluate all relevant economic factors
described in this clause within the context of the business cycle
and conditions of competition that are distinctive to the
affected industry.

19 U.S.C. § 1677(7)(C)(iii).
Court No. 10-00250 Page 5

request or petition for an investigation (“POI”).4 The

investigation at issue here was initiated on June 5, 2009, when

AWP Industries, Inc. (“AWP”), ITC Manufacturing, Inc. (“ITC”),

J&L Wire Cloth, Inc. (“J&L”), Nashville Wire Products Mfg. Co.,

Inc. (“Nashville Wire”) and Wireway Husky Corp. (“Wireway”),

(collectively the “Domestic Industry,” “Petitioners,” or

“Plaintiffs”), filed petitions with both the U.S. Department of

Commerce (“Commerce”) and the Commission, alleging that the U.S.

wire decking5 industry was being materially injured or was

threatened with material injury by reason of Chinese imports.

The Domestic Industry also alleged that Chinese producers were

selling their wire decking product at less than fair value

(“LTFV”) while receiving subsidies from the Chinese government,

4
See Frontseating Service Valves from China, USITC Pub. 4073,
Inv. No. 731-TA-1148, at 10 n.44 (April 2009)(Final). The
Commission extended the POI from three to four years for this
investigation at the request of Petitioners. Pet’rs Comments on
Draft Questionnaires (Dec. 29, 2009)(CL 85); see also Def.’s
Mem. in Opp’n to Pl.’s Mot. for J. on the Agency R. 4 n.2
(“Def.’s Br.”); Mem. by Def.-Intervenors in Opp’n to Mot. for J.
on the Agency R. 5 n.3 (“Def.-Int.’s Br.”). Thus, the POI at
issue included the four years 2006-2009.
5
Wire decking is a fabricated decking assembly used as a
shelf surface in a rack storage system for warehouse, commercial
or industrial storage. Wire Decking from China, USITC Pub. 4172,
Inv. Nos. 701-TA-466 and 731-TA-1162, at 5 (July 2010) (“Final
Views”); Def.’s Br. 4. The Commission defined the domestic like
product as consisting of all wire decking and the domestic
industry to include all domestic producers of wire decking. Final
Views 7, 10; Def.’s Br. 4.
Court No. 10-00250 Page 6

thus causing material injury to the U.S. industry.6

Generally, to put the investigation in context, during this

POI, from 2006-2009, “nonresidential construction activity

slumped . . . , w[ith] industrial production bottom[ing] out in

mid-2009.” Final Views at 15. Thus, the Commission was faced

with determining the effects of the subject imports in a

generally declining economic environment that reduced demand.

Nonetheless, during the preliminary investigation, the Commission

found “a causal nexus between the subject imports and the

deteriorating condition of the domestic industry.” Views of the

Commission in the Preliminary Investigation 27 (CR 70)(PR

47)(“Prelim. Views”). In the final phase of its investigation,

however, the Commission – after receiving questionnaire responses

from foreign producers, domestic producers, importers and

purchasers, in addition to evidence submitted by Petitioners –

determined that the domestic industry was not being materially

injured or threatened with material injury by reason of wire

decking from China. Rather, to the Commission, the industry’s

6
Plaintiffs participated in the Commission’s administrative
proceedings, as did Nucor Corporation (“Nucor”), another domestic
producer. Defendant-Intervenors, Respondents Dalian Eastfound
Metal Products Co., Ltd. and Dalian Eastfound Material Handling
Products Co., Ltd. (collectively, “Eastfound”) and Worldwide
Material Handling Products, LLC (“Worldwide”)(collectively,
“Respondents” or “Defendant-Intervenors”) also participated.
Court No. 10-00250 Page 7

difficulties were due to other economic factors or conditions.7

Notably, the Commission sent questionnaires to ten domestic

wire decking producers identified by Petitioners, and received

eight responses, seven of which provided usable information.

Petitioners estimated that the seven usable responses accounted

for approximately 99 percent of U.S. wire decking production in

2008. Confidential Staff Report for the Final Investigation III-1

n.1 (June 17, 2010)(CR 180)(“Final Staff Report”). In addition,

for the final phase of the investigation, the Commission sent

questionnaires to thirty-six U.S. wire decking importers, and

again received seven usable responses from firms reporting wire

decking imports. The Commission stated that these responses were

reported to account for “the majority” of imports during the

relevant period. Final Views 3-4; see also Final Staff Report at

IV-1. Further, the Commission received twenty-six purchaser

responses and sent forty-eight final questionnaires to foreign

7
Commissioners Lane and Williamson dissented, finding that
the United States industry was being materially injured by reason
of the subject imports. Dissenting Views of Commissioners
Charlotte R. Lane and Irving A. Williamson, at 1-16 (CR 187)
(“Dissenting Views”). The dissent concluded that “if subject
imports had been fairly traded[,] there would have been a
beneficial impact on the domestic industry, either in price
increases, volume increases, or both,” and that therefore the
domestic industry’s difficulties were, to a sufficient degree,
due to subject imports. Id. at 16. To the dissent, the domestic
industry was able to maintain its position during declining
economic conditions only by keeping its prices low. Id. at 6.
The notice of the Commission’s final determination was
published on July 30, 2010. Wire Decking from China, 75 Fed. Reg.
44,988 (July 30, 2010)(PR 131).
Court No. 10-00250 Page 8

producers believed to produce wire decking in China during the

POI, receiving four responses.8 Final Staff Report at VII-2.

The Commission believed that these responses accounted for the

vast majority of Chinese production and exports to the U.S. in

2009. Final Views 4.9

After briefly summarizing the court’s familiar standard of

review, this decision will discuss each of the Commission’s

subsidiary findings that Plaintiffs challenge here.

STANDARD OF REVIEW

Where an action is brought under 19 U.S.C. § 1516a(a)(2)

seeking review of a final determination of the Commission under

19 U.S.C. § 1673d,“[t]he court shall hold unlawful any

determination, finding, or conclusion found . . . to be

unsupported by substantial evidence on the record, or otherwise

not in accordance with law[.]” 19 U.S.C. § 1516a(b)(1). The

substantial evidence standard of review “can be translated

roughly to mean ‘is [the determination] unreasonable?’” Nippon

8
One of these responses came from Eastfound.
9
Specifically, the Commission believed that these responses
accounted for approximately [[ ]] percent of Chinese production
and [[ ]] percent of Chinese exports to the U.S. in 2009. Final
Views 4; Final Staff Report VII-2-VII-5. The staff report
contains no explanation for the fact that the reported percentage
of Chinese production is higher than the percentage of Chinese
exports.
Court No. 10-00250 Page 9

Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir.

2006) (alteration in original) (quoting SSIH Equip. S.A. v. U. S.

Int’l Trade Comm’n, 718 F.2d 365, 381 (Fed. Cir. 1983)),

”tak[ing] into account whatever in the record fairly detracts

from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951).

The Commission steps outside of its authority when:

[T]he agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867 (1983).

DISCUSSION

I. Volume & Market Share

In considering the economic conditions facing the domestic

industry, the Commission relied on data from importer

questionnaire responses, finding that, while the volume of

subject imports was significant both in absolute terms and as a

share of apparent U.S. consumption, the subject imports’ market

share increase – less than two percentage points from 2006 to
Court No. 10-00250 Page 10

2009 – was not significant. Final Views 19-20; Def.’s Br. 13.10

Plaintiffs argue that the Commission’s reliance on the data

from those importers who submitted questionnaire responses and

its failure to consider wire decking imported from non-responding

companies, in order to determine import volumes and sales, was

unreasonable when considered in light of the evidence in the

entire record. Plaintiffs claim that the questionnaire responses

that the Commission received from importers were insufficient as

a data set and thus “understated and mischaracterized import

volumes and market share trends.” Pl.’s Rule 56.2 Mem. of Law in

Support of Mot. for J. on the Agency R. 12 (“Pl.’s Br.”).11

Particularly, Plaintiffs assert that the questionnaire

response data failed to account for a shift in marketing of

subject imports, including the fact that those non-responding

firms were the same new importers that had begun importing

directly from China in 2008-2009. Pl.’s Br. 13; Pl.’s Reply Br.

2.

The Commission asserts that the questionnaire responses

10
See 19 U.S.C. § 1677(7)(C)(i)(“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
consumption in the United States, is significant.”)
11
Plaintiffs do not take issue with using a data set of
less than 100%, but rather with what they see as evidence on the
record that the responses were not indicative of actual market
conditions. Pl.’s Br. 14.
Court No. 10-00250 Page 11

accounted for the largest importers and a majority of subject

imports and that the questionnaire responses were certified on

submission. Def.’s Br. 14. As the Commission found

questionnaire data to be the most reliable, it credited this data

set. Id.

Countering the Commission’s claims, Plaintiffs provide data

estimates for imports missing from the Commission’s data set.12

Plaintiffs state that, due to these omissions from key importers,

the Commission’s data set showed “declining volumes and a

relatively steady import market share” as opposed to increasing

imports that had a detrimental effect on the U.S. wire decking

industry. Pl.’s Br. 16.13

The Commission responds that even by Plaintiffs’

calculations, the responses still account for the great majority

of subject imports. Def.’s Br. 15.14 In addition, the Commission

addressed Petitioners’ concern regarding importers, stating that

three of the importers that provided responses in the

preliminary, but not the final phase of investigation, accounted

for only a minor number of subject imports. Final Views 20

12
Plaintiffs claim that almost [[ ]] percent of import
data, from twelve companies alone, was missing from the
Commission’s calculations. Pl’s Br. 15.
13
Plaintiffs contend that the Commission’s calculation
that import market shares were steady affected its entire
determination. Id. at 21-22.
14
At least [[ ]] percent of all 2009 subject imports.
Court No. 10-00250 Page 12

n.89.15 In addition, Respondents stated that three of the firms

that reported data to the Commission16 made up 90 percent of U.S.

imports during the POI, Final Staff Report IV-1 n.1, thus

“account[ing] for a large majority of subject imports.” Def.’s

Br. 15.

The Commission adds that it did not supplement its data with

official statistics “because official import statistics are based

on basket categories of the HTS that are too broad to provide

import data specifically for wire decking.” Final Views 20.17

Thus, of the thirty-six importers to receive questionnaires, not

all of them necessarily imported the subject merchandise because

wire decking is classified under a broad, or “basket” HTSUS

category. Def.’s Br. 16; see also Final Staff Report at I-8-I-

9.18

The Commission also asserts that it did not use Plaintiffs’

import estimates because those estimates “do not distinguish

15
Only [[ ]] percent.
16
[[ ]]
17
Further, the Commission notes that it is common to not
receive a full set of responses, and the normal practice is to
rely on the response data, particularly when, as here, the
Harmonized Tariff Schedule of the United States(“HTSUS”) does not
provide a “statistical breakout” that would allow for relying on
official import statistics. Def.’s Br. 1-2.
18
HTSUS 9403.90.80.40. Defendant notes that there
currently exists a specific statistical breakout for wire
decking, but that the breakout did not exist during the POI.
Def.’s Br. 16 n.3.
Court No. 10-00250 Page 13

between imports and import shipments[.]” Final Views 21; Def.’s

Br. 19. Petitioners themselves had recognized this distinction.

Def.’s Br. 19; see also Pet’rs Posthr’g. Br. at 6 n.14 (June 4,

2010)(CR 175). The Commission states that import shipments can

be more reliable because they include only those imports that

actually enter the market as opposed to those that are stored in

inventory. Def.’s Br. 19-20; see also Comm. for Fair Coke Trade

v. United States, 28 CIT 1140, 2004 WL 1615600, at *15 (2004).

The Commission notes that Petitioner’s constructed import tables

were also unpersuasive, as they appeared to overstate the total

subject imports during the POI. Def.’s Br. 20.

Reiterating its finding that official import statistics

based on “basket categories” do not provide accurate data on wire

decking imports alone because they include other products, the

Commission concluded that it could not corroborate the

Plaintiffs’ estimates. Final Views 22.

* * *

It is clear to the court that the Commission did address

Plaintiffs’ concerns about the limitations of questionnaire

response data from importers. First, the Commission acknowledged

the data gap. Id. at 21, n.90.19 The Commission credited the

19
“Although the ITC concedes its information was not
complete, e.g., that 20% of U.S. imports from China were not
accounted for by the questionnaire responses, the ITC ‘is not
required to gather 100% coverage in the questionnaire responses
before it can make a determination.’ United States Steel Group v.
Court No. 10-00250 Page 14

fact that, notwithstanding the lack of complete response data,

the sworn statements of the responding importers were still the

most reliable information on the record, as they accounted for

the majority of subject imports and certified as accurate. Final

Views 20-21.20 The fact that information has been certified is a

reasonable explanation for using that information in lieu of

relying upon other evidence, and the Commission’s decision to use

certified information over other “reported figures” is a

reasonable exercise of its discretion. See Timken Co. v. United

States, 28 CIT 277, 321 F. Supp. 2d 1361, 1365-67 (2004).

Second, the Commission addresses Plaintiffs’ concern that

the questionnaires, without Petitioners’ additional estimates, do

United States, 18 CIT 1190, 1203, 873 F. Supp. 673, 688 (1994)
(in context of final determination); Torrington Co. v. United
States, 16 CIT 220, 223-24, 790 F. Supp. 1161, 1166 (1992), aff'd
991 F.2d 809 (Fed. Cir. 1993) (finding in the context of a
preliminary determination that the ITC did not abuse its
discretion by using questionnaire responses that ‘represented a
substantial majority of domestic production’).” Comm. for Fair
Coke Trade v. United States, 28 CIT 1140, 2004 WL 1615600, at
*15-16 (2004).
20
Plaintiffs state that information they submitted was
based on first-hand knowledge, as well as certified and sworn
under oath. The court reads the Commission’s preference in this
case for certified data over other evidence to refer to the
Petitioners’ import estimates, recognizing that Plaintiffs’
submitted information from producers and declarations includes
sworn documents and testimony given under oath. Pl.’s Reply Br.
5-6; see also Pet'rs Posthr'g Br. Ex. 6 (Petitioners’ import
estimates table); Hr'g Tr. 21-22, 35, 80-81 (May 27, 2010)(PR
100)(producers’ information); Pet'rs Posthr'g Br. Exs. 7, 8, 12,
13 & 16 (declarations).
Court No. 10-00250 Page 15

not accurately show the trends over the relevant period. In

addition to obtaining four additional responses from importers,

the Commission states that many of the initial thirty-six

importers did not import the subject merchandise, had stopped

doing so, or did so in nominal quantities. Def.’s Br. 16-17,19;

Final Staff Report IV-1 n.2; Final Views 20 n.89.

The Commission concludes that any potential for skewed data

was actually overstated – because Atlas21 remained the importer

of record even when firms that purchased wire decking from Atlas

were identified as consignees. Final Views 22 n.95; Final Staff

Report IV-1 n.1; Hr’g Tr. 159-160; Resp’ts Posthr’g Br. 7 & App.

2, at 14-16 (Decl. of Victor Kedaitis22)(CR 176)(June 4, 2010).

In particular, Respondents provided evidence regarding two

firms23 – accounting for a large amount of what Petitioners

claim to be missing data. This evidence indicated that firm one

was always a customer of Atlas (and Nashville Wire) was never an

importer of record; the other is believed to be out of business.

Final Views 22 n.95. Two other firms mentioned by Petitioners24

21
Atlas was the largest U.S. importer of wire decking
during the relevant period. The issue of whether Atlas has
ceased operations is discussed further below.
22
Mr. Victor Kedaitis is President and CEO of Worldwide
and a former Atlas general manager and vice president.
23
[[ ]]
24
[[
]]
Court No. 10-00250 Page 16

likely do not exist anymore. Id.; see also Resp’ts Posthr’g Br.

App. 2, at 14-15 (Decl. of Victor Kedaitis). As such, Atlas

reported those imports in its questionnaire. Def.’s Br. 18; Final

Views 22 n.95.

In addition, the Commission argues that Plaintiffs’ evidence

is not as reliable as Respondents’ documentation, including the

Kedaitis declaration, indicating that Petitioners’ volumes are

overstated. Def.’s Br. 21-22. Thus, the Commission decided to

credit this sworn witness testimony in lieu of Petitioners’

estimates in making its determination. Id. at 18, 22.

Plaintiffs argue that this explanation was insufficient and

add that their reported evidence of importation was more valid.

Pl.’s Br. 14, 19-20 n.5. However, it is not within the court’s

purview to weigh the evidence presented, but rather to assess

whether the Commission reasonably considered the record in making

its determination. U.S. Steel Grp. v. United States, 96 F.3d

1352, 1357 (Fed. Cir. 1996)(maintaining that the Commission, as

the trier of fact, has broad discretion in assigning relative

weight weight to each piece of evidence). The possibility of

drawing two inconsistent conclusions from the evidence does not

render the agency’s determination unreasonable, Consolo v. Fed.

Mar. Comm’n, 383 U.S. 607, 620 (1966); where “[s]ubstantial

evidence exists on both sides of the issue[,] . . . the statutory

substantial evidence standard compels deference to the [agency].”
Court No. 10-00250 Page 17

Nippon Steel Corp. v. United States, 458 F.3d 1354, 1354 (Fed.

Cir. 2006).

Here, the Commission reasonably addressed Plaintiffs’

concerns regarding the importers’ questionnaire response rate,

gave a reasonable explanation for why it used the questionnaire

data set as opposed to Petitioners’ recommended information, and

reasonably considered the relevant factors and evidence in the

record. Therefore, the Commission’s determination regarding

import volumes and market shares, based on importer

questionnaires, was supported by substantial evidence on the

record.25

25
Plaintiffs also attempt to claim that, as a matter of
law, the Commission conducted an inadequate investigation because
it failed to 1) follow its unanswered questionnaires with either
emails or telephone calls in order to corroborate the response
data on the record, Pl.’s Br. 25; 2) utilize its subpoena power,
see 19 U.S.C. § 1333; see also 19 C.F.R. § 207.8 (2010); 3) or
draw adverse inferences against or otherwise penalize non-
cooperative respondents.
But there is no indication here that the Commission failed
to conduct a diligent and adequate investigation or failed to
consider a crucial issue. See Atl. Sugar, Ltd. v. United States,
744 F.2d 1556, 1561 (Fed. Cir. 1984)(“Nothing in the best
information rule or its legilsative [sic] history defines a
standard of investigative thoroughness.”); see also Hercules,
Inc. v. United States, 11 CIT 710, 743, 673 F. Supp. 454, 482
(1987)(“There appears to be no recognized or statutorily set
minimum standard by which the thoroughness of the investigation
is measured.”).
To the extent that the Plaintiffs suggest that adverse
inferences should have been drawn, under the statute, the
Commission is not required to make adverse inferences in this
circumstance, where no finding of a failure to cooperate has been
made, and it is unusual in any case for the Commission to do so.
GEO Specialty Chems., Inc. v. United States, Slip Op 09-13, 2009
WL 424468, at *6 (CIT Feb. 19, 2009)(“The Commission is not
Court No. 10-00250 Page 18

II. Price Suppression & Underselling

In evaluating the price effects of subject imports, the

Commission must consider whether significant underselling and

price depression has occurred.26 Here, the Commission found

significant underselling by subject imports,27 but did not find

that the subject imports caused the suppression of domestic like

product prices. Final Views 24-25.

Plaintiffs claim that the Commission’s determination that

subject imports did not significantly suppress U.S. prices is not

supported by the record, arguing that the influx of subject

required to draw an adverse inference against a party who ‘has
failed to cooperate by not acting to the best of its ability to
comply with a request for information,’ although it may do so.”
(citing 19 U.S.C. § 1677e(b)). Rather, the Commission “draw[s]
reasonable inferences from the evidence it finds most
persuasive.” Uruguay Round Agreements Act, Statement of
Administrative Action, H.R. Doc. No. 103-316, vol. 1 at 869,
reprinted in 1994 U.S.C.C.A.N. 4040, 4198 (“SAA”).

26
(ii) Price
In evaluating the effect of imports of such merchandise
on prices, the Commission shall consider whether—
(I) there has been significant price underselling by the
imported merchandise as compared with the price of
domestic like products of the United States, and
(II) the effect of imports of such merchandise otherwise
depresses prices to a significant degree or prevents
price increases, which otherwise would have occurred, to
a significant degree.

19 U.S.C. § 1677(7)(C)(ii).
27
The Commission found that imports undersold the domestic
like product in 85 out of 93 quarterly price comparisons. Final
Views 23-24.
Court No. 10-00250 Page 19

imports into the U.S. market led to a price suppression and

corresponding financial losses for the domestic industry. Pl.’s

Br. 28.

Plaintiffs specifically point to evidence that six

responding purchasers reported that U.S. purchasers have lowered

their prices since January 1, 2006, in order to compete with

subject imports, Pl.’s Br. 27; Final Staff Report V-28, that only

three purchasers stated that they did not reduce prices, and that

two reported that falling prices were due to the general decline

in steel product prices. Final Staff Report V-28.

On the other hand, the Commission found that, while margins

of underselling ranged from .9 to 54.4 percent, only a limited

number of lost sales and lost revenue allegations were confirmed.

Final Views 24 & n.106.28 The Commission attributed the falling

price of wire decking in 2009 to declining demand, the

availability of substitutes and the significance of non-price

factors, rather than the effect of subject imports. Def.’s Br.

2,29-30. Thus, the Commission concluded that the subject imports

did not significantly affect domestic prices during the relevant

period. Final Views 25.

As support for its conclusion, the Commission points to the

28
Plaintiffs argue that the reason for this lack of
confirmation is that “most purchasers simply did not respond to
the ITC at all.” Pl.’s Reply Br. 12. Plaintiffs also point to
their own evidence which they interpret as confirming lost sales.
Court No. 10-00250 Page 20

fact that the domestic industry’s unit cost of goods sold

(“COGS”) was only slightly higher in 2009 than 2006 and that the

evidence did not show that the subject merchandise prevented

price increases which would have occurred otherwise. Final Views

24; Def,’s Br. 29. The Commission explained that, despite the

volume of subject imports, domestic producers were able to raise

prices to cover a large amount of the increase in unit COGS in

2008 which had resulted from the increased cost of raw materials,

and that even as demand declined sharply they were able to cover

a large share of COGS in 2009. Final Views 24-25; Def.’s Br.

30.29 Thus, the Commission relied on the domestic industry’s

apparent success in increasing prices during a market decline in

relation to the COGS.

More generally, the Commission determined that the record

did not show that subject imports prevented prices from

increasing, but rather that declining demand30 and the

availability of substitute products31 limited price increases.

29
Defendant-Intervenors argue that producers were able to
“fully cover increases in raw material costs,” Def.-Int. Br. 22-
24, 26, noting that the Domestic Industry’s margins of per-unit
sales values over raw material costs stayed steady or increased
over the POI. Def.-Int. Br. 9 (table and citations for the data
included therein).
30
The decline in demand limited the volume of sales across
which producer’s could allocate costs. See Final Views at 24
n.109.
31
“[A] substantial share of producers, importers and
purchasers reported” the availability of substitute products for
Court No. 10-00250 Page 21

Final Views 24.

The court will consider, in turn, each aspect of the factors

the Commission found important on this issue.

A. Declining Demand

No party challenges the Commission’s finding that declining

demand had an effect on the domestic industry and its ability to

raise prices during the POI. See Final Views 24-25; Pl.’s Br. 31;

Def-Int. Br. 21.

B. Substitutes

Plaintiffs contend that, contrary to the Commission’s

assertions that substitute products for wire decking exist, “fire

codes, insurance requirements and building codes did not

generally permit use of such products.” Pl.’s Br. 29. The

domestic industry testified that “[t]here are no real practical

substitutes for wire decking in the U.S. market . . . wire

decking is duly required by insurance companies and building

codes for use in commercial storage systems.” Hr’g Tr. 16-17;

Pet’rs Prehr’g Br. 6 & Ex. 2 (CR 166, 170) (PR 91); Dissenting

Views 4 & n.20. Plaintiffs note that only ten percent of thirty-

one responding purchasers reported price effects from the

substitute products. See Pl.’s Br. 30; Dissenting Views 4; Final

wire decking. Final Views 24 n.110.
Court No. 10-00250 Page 22

Staff Report II-12.32

The Commission states in its Final Views, however, that a

“substantial” number of purchasers, producers and importers

reported that there are substitutes available for wire decking

products in some cases, making “aggregate demand for wire decking

moderately elastic” and limiting the amount that the price of

wire decking could be raised to cover increased COGS. Final Views

24 & n.110.

The Commission states that, contrary to the Plaintiffs’

reference to testimony regarding fire codes, insurance

requirements and building codes, a large number of producers,

importers and purchasers reported a variety of products that were

in fact wire decking substitutes. Def.’s Br. 32; Final Views 17

n.76, 24 n.110.33 The Commission argues that it did not

overstate the significance of substitute products, admitting that

substitutes were only available in some applications. Final Views

32
Specifically, only [[ ]],
and only [[ ]] of thirty-one responding purchasers reported
price effects from the substitute products. Pl.’s Br. 30;
Dissenting Views 4; Final Staff Report II-12. Moreover, one of
these purchasers was reported to have identified a wire decking
substitute; but the product that was apparently identified,
[[ ]], is an input into [[ ]] wire decking, not an
actual substitute product. Dissenting Views 4 n.18; Pl.’s Br. 30
n.9.
33
Including: pallet rack supports, warehouse shelving, non-
supported wire mesh, wood, metal/steel decking, cross bars,
expended metal corrugated decking, bard grading and rack dex-
perforated decking. Final Staff Report II-12.
Court No. 10-00250 Page 23

24 n.110; Def.’s Br. 32. Rather, evidence of substitutes was one

of the factors in its determination, considering the evidence on

the record. Def.’s Br. 32-33.

As Plaintiffs mention in their brief, there is record

evidence that these products may not have been substitutable in

practice, and a vast majority of questionnaire responses

indicated that a change in the price of substitute products does

not affect wire decking prices. Final Staff Report II-12.

However, the standard is whether a reasonable mind, considering

all of the record evidence, could have made the same

determination as the Commission. In light of the record evidence

cited by the Commission, it was not unreasonable for it to give

some weight to the affect of substitute products on prices

charged by the domestic industry. Although the record would have

permitted the opposite conclusion, it did not mandate such an

opposite result.

C. Price

Regarding price, the Commission argues that while Plaintiffs

did point to six instances of purchasers that responded that they

had reduced prices in order to compete with subject imports,

there were also two purchasers that stated that falling prices

were due to the decrease in all steel product prices; one

purchaser also stated that domestics sell “for the same or for

less” than the imported wire decking. Final Staff Report V-28;
Court No. 10-00250 Page 24

Def.’s Br. 30. In addition, the Commission notes that it did

consider these responses, but that other evidence – indicating

that general steel price decreases were to blame and that

domestic purchasers were selling for equal or lower prices –

weighs against Plaintiffs’ argument.

The Commission adds that the majority of purchasers did not

report switches to imports due to lower pricing and that a

majority of purchasers also reported that differences aside from

price were frequently important in their purchasing decisions.

Def.’s Br. 30; Final Views 17; Final Staff Report Table II-19.

Despite evidence of price sensitivity, the Commission noted

that a majority of purchasers reported that non-price factors

were frequently significant in their purchasing choices,

bolstering its claim that the significance of underselling was

limited. Final Views 25 n.113.

The Commission acknowledges that subject imports and

domestic like products were highly interchangeable, and that the

record showed that price was an important factor in purchasing

decisions. Id. at 23. The Commission also recognizes the

significant underselling (margins up to 54.4 percent) and that

subject imports undersold U.S. producers in 85 out of 93

comparisons. The Commission nonetheless explains that these

factors are less important than demand declines and substitutes

products. Def.’s Br. 31.
Court No. 10-00250 Page 25

In response, Plaintiffs reiterate that their evidence was

consistent with reports by U.S. producers that imports were

suppressing prices in the domestic industry, including reports

that U.S. producers had to lower prices to keep pace with Atlas’s

low selling price. Pl.’s Br. 27-28 n.8. Plaintiffs argue that

the domestic industry suffered financial losses because it could

not keep its prices in line with costs. Id. at 28; Pl.’s Reply

Br. 10. This logic is supported by evidence indicating that wire

decking, as “a commodity product, [is] sold largely on the basis

of price.” Dissenting Views 3.

In the final analysis, however, the Commission chose to

attribute substantial weight to the fact that the domestic

industry continued to be able to raise prices sufficiently to

cover much, if not all, of its increasing costs. Although the

record evidence could have supported a different conclusion,34

the court cannot find that the Commission’s conclusion was

unreasonable. The Commission did not ignore the contrary

evidence nor did it fail to consider the important factors

relevant to this issue. On the contrary, it assessed the

economic conditions and chose to place weight on particular

34
The court notes that the dissenting Commissioners found
“clear and consistent evidence of price suppression[,]” such as
the ratio of COGS to net sales, which moved against the domestic
industry during the POI. Dissenting Views 8-9.
Court No. 10-00250 Page 26

evidence in the record.35 Again, the role of this court is not

to re-weigh the evidence presented to the Commission, but rather

to assess if its determination was reasonable given the evidence

on record.

The Commission must reasonably consider all of the evidence

on the record, make a conclusion based on a reasonable reading of

all that evidence, and reasonably explain its reasoning for

finding underselling but not price suppression. The Commission

did so here.

III. Decline in Demand and its Impact on the Domestic

Industry36

35
The parties dispute the significance of the statistical
and price variance evidence on the record. Pl.’s Br. 28-29; see
also Final Staff Report VI-8-VI-9; Def.-Int. Br. 24-25;
Eastfound/Worldwide Final Comments 3-6 (CR 183). Variance
analysis is a tool that the Commission may use during an
investigation. See Hynix Semiconductor, Inc. v. United States, 30
CIT 1828, 1834 n.5, 474 F. Supp. 2d 1338, 1344 n.5 (2006)(noting
that the Commission “routinely utilizes a variance analysis to
isolate the effects of changes in price, volume, and unit cost”).
The Commission states that it addressed Plaintiffs’ remarks
regarding the variance analysis and its connection with price
suppression by stating in its Final Views that “[a]lthough the
ratio of COGS to net sales increased between 2006 and 2009, the
record does not establish that subject imports prevented price
increases that otherwise would have occurred.” Final Views 24;
Pl.’s Br. 28; Final Staff Report IV-8-9; Def.-Int. Br. 24-25.
36
The statute places the following requirements on the
Commission’s consideration of the:

(iii) Impact on affected domestic industry
In examining the impact required to be considered under
subparagraph (B)(i)(III), the Commission shall evaluate all
(continued...)
Court No. 10-00250 Page 27

The Commission acknowledges that domestic industry

performance declined during the POI, but concludes that subject

36
(...continued)
relevant economic factors which have a bearing on the state
of the industry in the United States, including, but not
limited to—
(I) actual and potential decline in output, sales, market
share, profits, productivity, return on investments, and
utilization of capacity,
(II) factors affecting domestic prices,
(III) actual and potential negative effects on cash flow,
inventories, employment, wages, growth, ability to raise
capital, and investment,
(IV) actual and potential negative effects on the
existing development and production efforts of the
domestic industry, including efforts to develop a
derivative or more advanced version of the domestic like
product, and
(V)in a proceeding under part II of this subtitle, the
magnitude of the margin of dumping.

The Commission shall evaluate all relevant economic factors
described in this clause within the context of the business
cycle and conditions of competition that are distinctive to
e affected industry.

19 U.S.C. § 1677(7)(C)(iii).

Plaintiffs state their claim on this issue as follows: “The
Commission erred in concluding that the injury suffered by the
domestic industry was attributable entirely to demand and not to
subject imports.” Pl.’s Br. 30. The answer to this claim, as
stated, is that it fails to address a flaw the Commission’s
determination. The Commission’s determination was that “the
declines in the domestic industry’s sale volumes and revenues are
largely explained by declining demand over the period examined.”
Final Views at 27(emphasis added). The difference is
significant because Plaintiffs’ exaggerated statement disregards
the analysis the Commission actually followed; Plaintiffs’
statement therefore cannot be sustained. Accordingly, the court
will assume arguendo that the Plaintiffs intended to challenge
the agency’s actual analysis on this issue.
Court No. 10-00250 Page 28

imports, while having a “significant presence in the market,”

were not responsible “in any significant degree” for this

decline. Final Views 27; Def.’s Br. 33. Rather, declining demand

during the POI was largely responsible for the decrease in

domestic sales and revenues, while the subject imports’ market

share remained steady during the examined period. Final Views 27,

30. Specifically, the industry’s declining performance was the

result of “[[ ]]” declining revenues that illustrated a

decline in demand, moderate demand elasticity and increases in

the COGS/sales ratio. Id. at 27; Def.’s Br. 33.

The Commission observes that U.S. shipments of subject

imports declined at a rate comparable to the rate of decline of

domestic producers’ shipments during the POI and that subject

imports did not take significant market share from the domestic

industry. Final Views 27. The Commission notes that, contrary to

Plaintiffs’ claim that the decline of subject imports coincides

with the investigations, the decline began in 2008, and the data

does not show that the decline in imports correlates with an

improvement in the industry’s financial condition. Final Views 19

n.85. In addition, during the investigation, “[p]etitioners and

respondents agreed that U.S. consumption of wire decking is tied

closely to total U.S. industrial output and the growth of big-box

retailing and that the current recession has certainly dampened

these activities.” Final Staff Report IV-6. Thus, while industry
Court No. 10-00250 Page 29

conditions were “unfavorable,” the Commission concluded that the

evidence did not show the “requisite causal nexus between the

subject imports and the condition of the domestic industry.”

Final Views 28.

Objecting to the Commission’s conclusion, Plaintiffs

reiterate their claim that the Commission failed to connect the

subject imports to the decline in the U.S. wire decking industry

because it did not account for all of the imports and their

displacement of domestic market share, especially in 2009. Pl.’s

Br. 31. Plaintiffs do not believe that the recession can account

for the entirety of the industry’s declining condition.36

Plaintiffs state that had the Commission properly accounted

for all imports, it would have found that subject imports were in

fact significantly displacing U.S. producers’ sales and market

share. Pl.’s Br. 31.37 Plaintiffs contend further that once

antidumping duties were imposed against importers in 2010,

imports of their products ceased and the U.S. industry saw

improvement in its profits despite a lack of increase in demand.

Pl.’s Br. 33; see also Pet’rs Posthr’g Br. Ex. 1, at 37-42, Ex. 3

(CR 175,178).

36
Plaintiffs argue that in 2008-2009 consumption declined
by [[ ]] percent, but operating profits declined by [[ ]]
percent. Pl.’s Br. 32; see also Final Staff Report at C-3.
37
The court has, of course, rejected this specific claim
in its discussion of Issue I above.
Court No. 10-00250 Page 30

As support for their argument, Plaintiffs rely on other

instances where the Commission found that a decline in demand was

only partially to blame for the declining financial situation of

a United States industry. In one example, Plaintiffs cite to an

investigation in which a decline in demand may have explained

performance declines only partially, but not fully. See Commodity

Matchbooks from India, USITC Pub. 4117, Inv. Nos. 701-TA-459 and

731 TA-1155, at 18 (Dec. 2009)(Final). As Defendant indicates,

however, the Commission’s determinations are sui generis, and the

particular facts and evidence of each case will determine the

outcome.38 The issue here is whether the Commission reasonably

interpreted the record evidence. Just because the Commission

found a decline in demand to be insufficient to explain the

industry condition in a previous case does not mean that it must

do so here. Rather, the Commission reasonably states that those

investigations involved improved performance during the POI, when

there was a more extensive data set; they are therefore

inapplicable to the present matter. Def.’s Br. 35.

According to Plaintiffs, the fact that the subject imports

largely ceased after the imposition of preliminary duties in 2010

and the industry condition improved thereafter proves a causal

nexus between the subject imports and the domestic industry’s

38
Both Defendant and Defendant-Intervenors distinguish
Commodity Matchbooks from India from the present matter. Def.’s
Br. 34; Def.-Int. Br. 28.
Court No. 10-00250 Page 31

condition. In response, the Commission notes that because the

data set ends in 2009, no such trend is indicated during the POI.

Final Views 19 n.85; Def.’s Br. 35.

The Commission is correct. While it has the discretion to

use post-POI data to bolster POI data or to further support its

decision,39 there is no requirement to include such post-POI

data, as the POI is the centerpiece of the investigation’s time

frame.40 Thus, the 2010 data, while a potential factor, is not

fatal to the Commission’s determination. Moreover, the fact that

a preliminary antidumping or countervailing duty order assisted

the domestic industry does not, by itself, mandate the conclusion

that the subject imports were a significant cause of injury.

In sum, because the Commission gives a reasonable

explanation for its decision, based on a reasonable reading of

the record evidence, it is not the court’s place to re-weigh the

evidence or to suggest that another alternative was the only

39
Bratsk Aluminum Smelter v. United States, __ CIT __, 533
F. Supp. 2d 1348, 1353 (2008)(“The Court finds therefore that the
ITC has addressed the causation issue specifically and in detail
as required by Gerald Metals and Bratsk CAFC and that the POI
price data when taken together with the post-POI data adequately
supports the conclusions that the ITC has made.”); see also 19
U.S.C. § 1677(7)(I).
40
The Commission is mandated however to consider whether
data submitted after the filing of a petition has been distorted
by the filing of trade actions and the imposition of preliminary
duties. 19 U.S.C. § 1677(7)(I); see also SAA at 853-54, 1994
U.S.C.C.A.N. at 4186; Nucor Corp. v. United States, 414 F.3d
1331, 1341 (Fed. Cir. 2005).
Court No. 10-00250 Page 32

appropriate choice. Under the statute, in order to find a causal

nexus between the subject imports and the domestic industry’s

condition, the Commission must find that the subject imports had

more than a tangential, trivial or incidental effect on the

industry. See supra note 2.41 In making its determination, the

Commission should “examine all relevant evidence” and “need not

isolate the injury caused by other factors from injury cased by

unfair imports...[r]ather, the Commission must examine other

factors to ensure that it is not attributing injury from other

sources to the subject imports.” SAA at 851-52. It has done so

here.

Here, as was concluded in the discussion of Issue I above,

the Commission appropriately relied on import questionnaire data

in its analysis of the impact of the subject imports on the

domestic industry. Plaintiffs point to other investigations and

data that, they argue, shows the requisite causal nexus between

the subject imports and the industry conditions. However, the

Commission found, based on a reasonable reading of the record,

41
“Bratsk did not read into the antidumping statute a
Procrustean formula for determining whether a domestic injury was
‘by reason of’ subject imports. It simply required the Commission
to consider the ‘but for’ causation analysis in fulfilling its
statutory duty to determine whether the subject imports were a
substantial factor in the injury to the domestic industry, as
opposed to a merely ‘incidental, tangential, or trivial’ factor.”
Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867, 879
(Fed. Cir. 2008)(citing Nippon Steel Corp. v. Int'l Trade Comm'n,
345 F.3d 1379, 1381 (Fed. Cir. 2003)).
Court No. 10-00250 Page 33

including a reasonable response to Plaintiffs’ preferred data

from after the POI, that demand declines were largely to blame.

The court will not re-weigh the evidence to reach a contrary

conclusion.

IV. Capacity

In analyzing any possible threat of future injury from

subject imports, the Commission found that “there appears to be

only limited excess capacity to increase production of wire

decking in China.” Final Views 31.42

In response, again raising the issue of the Commission’s

reliance on questionnaire response data, Plaintiffs claim that

the Commission erred by relying on insufficient responses from

Chinese producers in making its determination regarding Chinese

capacity. Out of forty-eight firms that received the

Commission’s questionnaires, only four Chinese producers,

including Eastfound, the largest, provided responses.

The Commission states that these four responses accounted

for “a substantial majority of Chinese production and Chinese

exports of wire decking to the United States in 2009[.]” Def.’s

Br. 36.43 The Commission also notes in its Final Staff Report

that Petitioners and Respondents disagreed over the number of

42
The Commission also concluded that the importers’
inventories of the subject imports were at a “relatively [[
]][.]” Final Views 31.
43
See supra note 9.
Court No. 10-00250 Page 34

Chinese firms that actually produce wire decking, and that

Respondents believed they had “virtually all of the major

producers” in the response data, and that some of the firms

claiming that they could produce wire decking are actually unable

to do so. Final Staff Report VII-2-VII-3 at nn.3-4.

The Commission concedes that the producers in China are

“export oriented” but states that, since 2008, an increasing

share of these exports have been shifting to third country

markets as opposed to the United States. Final Views 30.44 The

Commission notes that while “there appears to be substantial

capacity to produce wire decking in China,” such capacity

declined over the examined period and was already declining

before this investigation began and before U.S. demand declined

“steeply” in 2009. Final Views 30.

The Commission maintains, as was the case with the importer

questionnaires, that even if the response rate was lower than

reported estimates, it still accounts for a substantial majority

of Chinese production and exports in 2009 and is comparable to

rates received in other investigations. Def.’s Br. 36; Final

Views 30 n.136. Thus, to the Commission, the questionnaire

responses remain the “best available record source” for Chinese

industry information. Final Views 31 n.136. The Commission again

44
The subject producers’ exports to the United States went
from [[ ]] percent in 2006 to [[ ]] percent by 2009. Final
Views 30 n.134.
Court No. 10-00250 Page 35

notes, correctly, that it is not required to receive 100%

response compliance. Id. at 30-31 & n.136.

The Commission adds that, based on its data, product-

shifting was not indicated as a significant factor, nor was there

any indication that exports to the U.S. would increase in the

imminent future. There were also no other import investigations

pending in other countries at the time. Id. at 31. Based on this

information, the Commission concluded that substantial increases

in subject imports to the U.S. were not imminent. Id.

Plaintiffs contend that numerous other producers that did

not respond were proven to export and sell wire decking, and

possibly could have had excess capacity. They argue that the

Commission did not conduct sufficient follow-up investigations to

confirm the “voluminous” data Plaintiffs submitted, showing that

these non-responders were in fact producing wire decking and

exporting it to the United States. Plaintiffs present a summary

of evidence regarding non-responders, including information

regarding fifteen Chinese producers, that they contend proves

that Chinese production of wire decking was much more substantial

than the Commission claimed in its investigation. See Pl.’s Br.

35-37.45 Plaintiffs believe that, had the Commission followed up

45
The summary of record evidence regarding non-responding
Chinese producers includes five producers who submitted responses
to Commerce reporting wire decking exports, but who did not
submit responses to the Commission; two additional producers
(continued...)
Court No. 10-00250 Page 36

to obtain the missing data from Chinese producers, or had it

considered data from other Chinese firms that Petitioners

identified, then the Commission would have found greater

capacity, and perhaps even excess capacity. Id. at 37.

Plaintiffs argue that their identification of aggressive sales

efforts, as well as foreign producers’ incentive not to inform

the Commission for their own financial gain,46 are a valid basis

for the conclusion that much more capacity existed than was

considered by the Commission. Id. at 37-38.

Plaintiffs are correct that the Commission cannot ignore

significant evidence that contradicts its claims. See Mitsubishi

Materials Corp. v. United States, 17 CIT 301, 319, 820 F. Supp.

608, 624 (1993). The Commission is required to consider all

“pertinent evidence” on the record of an investigation before

reaching its final result. Roses, Inc. v. United States, 13 CIT

662, 665, 720 F. Supp. 180, 183 (1989)(citation omitted).

45
(...continued)
named by U.S. importers as their source of Chinese wire decking;
four additional Chinese producers identified by respondents; two
additional producers [[
]]; one additional producer [[
]]; one additional producer
who submitted a preliminary but not a final response; and the
Domestic Industry also submitted emails received from other
Chinese producers who did not respond to questionnaires and who
approached the Domestic Industry with offers to sell them wire
decking products. Id. at 36-37.
46
Plaintiffs contend, and the Commission affirmed, that
even the four firms that did report data to the Commission
exceeded 100% capacity rates.
Court No. 10-00250 Page 37
Further, “[the Commission] must address significant arguments and

evidence which seriously undermines its reasoning and

conclusions.” Altx, Inc. v. United States, 25 CIT 1100, 167 F.

Supp. 2d 1353, 1374 (2001). The Commission must then disclose

its reasoning, explaining how it has used its discretion in

making its determination and “articulate a[] rational connection

between the facts found and the choice made.” Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 167-68, 83 S. Ct.

239, 245-46 (1962).

Here, however, the Commission discusses various reasons for

its determination regarding Chinese capacity, while it gives less

weight to Plaintiffs’ Chinese production data and more weight to

witness testimony. Therefore, the court cannot conclude that the

Commission’s determination was unreasonable. The Commission

relied in significant part on the Kedaitis testimony cited above.

Specifically, Mr. Kedaitis testified, based on his years of

industry experience, visits to the Chinese companies and meetings

with their owners,47 that while some Chinese companies claim they

can produce wire decking, in actuality they cannot. Final Staff

Report VII-3 n.4; see also Resp’ts Posthr’g Br. App. 1, at 35.

Kedaitis listed the various alleged producers, and stated that

these companies do not produce wire decking in reality, even if

they claim to do so. He stated that Petitioners’ claims greatly

47
See Resp’ts Posthr’g Br. App. 2, at 8 & Attach. IX.
Court No. 10-00250 Page 38
exaggerated what are in fact “minimal imports of subject decks.”

Resp’ts Posthr’g Br. App. 2, at 6-16. Also, Eastfound, the

largest Chinese producer of wire decking, reported that in

February of 2009 it closed one of its two factories, laid off

more than 500 employees and reduced production capacity. Final

Staff Report VII-4 n.6; Def.-Int.’s Br. 8.

Plaintiffs claim that their evidence is more reliable than

the Commission’s. But it is the Commission’s duty to evaluate

the record evidence and determine the credibility of the

submitted evidence, Nevinnomysskiy Azot v. United States, __ CIT

__, 565 F. Supp. 2d 1357, 1374 (2008), even where testimony comes

from an interested party, Negev Phosphates, Ltd. v. U.S. Dep’t of

Commerce, 12 CIT 1074, 1091-92, 699 F. Supp. 938, 953 (1988).

[W]hen the totality of the evidence does not
illuminate a black-and-white answer to a disputed
issue, it is the role of the expert factfinder -
here the majority of the . . . Commissioners - to
decide which side's evidence to believe. So long as
there is adequate basis in support of the
Commission's choice of evidentiary weight, the
Court of International Trade, and this [appellate]
court, reviewing under the substantial evidence
standard, must defer to the Commission.

Nippon Steel Corp. v. United States, 458 F.3d 1345, 1359 (Fed.

Cir. 2006).

V. Whether the Major Importer was No Longer Operating

Finally, the Commission stated in its Final Staff Report

that Atlas “ceased operations...and sold its remaining assets to

Worldwide in 2010. Worldwide reports that, to date, it has not
Court No. 10-00250 Page 39
imported subject merchandise and that wire decking is not the

sole focus of its sales and service operations.” Final Views 31-

32; Def.’s Br. 37. The Commission states that this factor made

it unlikely that subject import levels would increase enough to

injure the U.S. industry in the imminent future. Id.

Plaintiffs contend that Atlas ceased importing wire decking

only because of the administrative action at issue here and that

Worldwide has only stopped importing in order to avoid paying

dumping duties. Pl.’s Br. 39. Plaintiffs add that Worldwide’s

statements indicate plans to resume selling wire decking in a

fashion similar to its predecessor, Atlas, with similar staffing,

management, locations and contact information. Id. at 39-40; see

also Pet’rs Posthr’g. Br. at 15 & nn.25-26. Petitioners

submitted record evidence that Kedaitis, the owner of Worldwide

and former manager of Atlas, continued to use three of the same

four Atlas warehouse locations and the same phone number. In

addition, Worldwide listed wire mesh as a main product and signed

up for a 2011 trade show to promote the product.48 Plaintiffs

also submitted evidence of Worldwide’s advertising that touted

Worldwide as a “[new] [n]ame...but the people you know.” Pet’rs

48
Petitioners also stated that [[

]] Id. at
n.26; see also [[

]].
Court No. 10-00250 Page 40
Posthr’g Br. Ex. 2.

The Commission acknowledges the similar identities of Atlas

and Worldwide, Def.’s Br. 37; Final Views 16, but points to

evidence indicating that Atlas was paring down its operations,

even before the change in ownership, and that Worldwide was not

importing subject merchandise. Def.’s Br. 37; Final Views 16;

Hr’g Tr. 141-44; Final Staff Report IV-1-IV-3; Resp’ts Posthr’g

Br. App. 2, at 1-6. In addition, in its Final Views, the

Commission refers to the Final Staff Report, which in turn cites

Mr. Kedaitis’s report at the Commission hearing that Worldwide

had not imported from China since its inception and that its

business model differed from Atlas’s. Final Staff Report IV-2-3

(PR at IV-1-2); see also Hr’g Tr. at 143, 202.

Mr. Kedaitis testified further that Atlas was affected by

the 2008 recession, closing locations, reducing staff and paring

down operations. Hr’g Tr. 143; Final Staff Report IV-2. Kedaitis

stated that Atlas Lift Truck and Sales, Inc., Atlas’s parent

company, decided to exit the wire decking business in order to

focus on fork lift trucks and other mechanized handling equipment

sales. Final Staff Report IV-2 n.4; Def.-Int. Br. 7. The Final

Staff Report also indicates that, for Worldwide, wire decking

would only be 20 percent of sales, compared to Atlas, for which

wire decking was 90 percent of sales. Final Staff Report IV-3

n.8. Mr. Kedaitis stated that Worldwide is a much smaller
Court No. 10-00250 Page 41
company than Atlas with a new business model, Hr’g Tr. 143, and

that Worldwide’s focus was sales of pallet rack and repair

equipment services. Hr’g Tr. 169; Resp’ts Posthr’g Br. App. 2, at

2. Mr. Kedaitis also explained that the advertisement referenced

by Plaintiffs was intended to advertise decks inventory; however,

it was out of context because Worldwide produces a new

advertisement each month in order to move away from wire decking

towards its new business model. Resp’ts Posthr’g Br. App.2, at 3-

6. Further, Mr. Kedaitis supplemented his claim that the company

was focusing more on pallet rack and repair equipment services by

submitting corroborating advertisements, brochures and website

information. See Resp’ts Posthr’g Br. App. 2, at Attachments VI-

VII.

Faced with “potentially credible evidence on both sides of

the issue[,]” the Commission has discretion in assigning weight

and ultimately making a determination, as long as its reading of

the record is reasonable. Nippon Steel Corp. v. United States,

458 F.3d 1345, 1358 (Fed. Cir. 2006). Here again, Plaintiffs

claim that their evidence is more reliable than the Commission’s.

However, it is the Commission’s duty to make the credibility

determination. On this record, sufficient evidence exists to

indicate that the Commission made a reasonable choice in its

determination that a major importer of wire decking was no longer

focusing on sales of wire decking.
Court No. 10-00250 Page 42
CONCLUSION

For all of the foregoing reasons, the Commission’s

determination is AFFIRMED in all issues. Judgment will be

entered accordingly.

It is SO ORDERED

/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge

Dated: July 12, 2011
New York, N.Y.