Eckstrom Industries, Inc. v. United States

Slip Op. 99-99
UNITED STATES COURT OF INTERNATIONAL TRADE

Eckstrom Industries, Inc.,

Plaintiff,
BEFORE: Pogue, Judge
v.
Court No. 97-10-01913
The United States,

Defendant. Public Version

[Commerce’s remand determination is sustained.]

Decided: September 20, 1999
Powell, Goldstein, Frazer & Murphy LLP, (N. David Palmeter, Susan
M. Mathews, and Ronald E. Minsk) for Plaintiff.

David W. Ogden, Acting Assistant Attorney General, Civil Division,
U.S. Department of Justice; David M. Cohen, Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
(Lucius B. Lau); Linda A. Andros, Attorney-Advisor, Office of the
Chief Counsel for Import Administration, Department of Commerce, of
counsel, for Defendant.

OPINION
Pogue, Judge: On October 28, 1998, in Eckstrom Industries,

Inc. v. United States, 22 CIT , 27 F. Supp.2d 217 (1998)

(Eckstrom I),1 this Court remanded certain aspects of the

1
Familiarity with the Court’s earlier decision in this case
is presumed.
Court No. 97-10-01913 Page 2

Department of Commerce’s ("Commerce" or "the Department") scope

determination issued pursuant to 19 C.F.R. § 351.225(k)(1)(1998).2

The remand order directed Commerce to reconsider its

determination and, if necessary, to conduct a formal scope inquiry

pursuant to 19 C.F.R. § 351.225(k)(2)(1998).3 After conducting the

§ 351.225(k)(2) inquiry, Commerce affirmed its determination that

Eckstrom Industries, Inc.’s ("Eckstrom") cast stainless steel butt-

weld pipe fittings are within the scope of the antidumping duty

order on stainless steel butt-weld pipe fittings from Taiwan.4 See

2
Section 351.225(k)(1) provides,

[I]n considering whether a particular product
is included within the scope of an order
. . . , [Commerce] will take into account
the following: (1) the descriptions of the
merchandise contained in the petition, the
initial investigation, and the determinations
of [Commerce] (including prior scope
determinations) and the Commission.
3
Section 351.225(k)(2) provides,

When the above [(k)(1)] criteria are not
dispositive, the Secretary will further consider:
(i) The physical characteristics of the product;
(ii) The expectations of the ultimate purchasers;
(iii) The ultimate use of the product; (iv) The
channels of trade in which the product is sold;
and (v) The manner in which the product is
advertised and displayed.
4
The original antidumping duty order states,

The products subject to this investigation
are certain stainless steel butt-weld pipe
fittings, whether finished or unfinished,
under 14 inches inside diameter.

Certain welded stainless steel butt-weld
pipe fittings (pipe fittings) are used to
connect pipe sections in piping systems
Court No. 97-10-01913 Page 3

Final Results of Redetermination Pursuant to Court Remand ("Remand

Determination") at 1-2. Plaintiff Eckstrom objects to Commerce’s

remand determination, arguing that the Order applies only to welded

pipe fittings, not cast. For the reasons set forth below,

Commerce’s remand determination is sustained.

BACKGROUND

In Eckstrom I, this Court held that the description of the

where conditions require welded connections.
The subject merchandise is used where one or
more of the following conditions is a factor
in designing the piping system: (1) Corrosion
of the piping system will occur if material
other than stainless steel is used;
(2) contamination of the material in the
system by the system itself must be prevented;
(3) high temperatures are present; (4) extreme
low temperatures are present; (5) high
pressures are contained within the system.

Pipe fittings come in a variety of shapes,
with the following five shapes the most
basic: ’elbows’, ’tees’, ’reducers’, ’stub
ends’, and ’caps’. The edges of finished
pipe fittings are beveled. Threaded,
grooved, and bolted fittings are excluded
from these investigations. The pipe fittings
subject to these investigations are
classifiable under subheading 7307.23.00 of
the Harmonized Tariff Schedule of the United
States (HTSUS).

Although the HTSUS subheading is provided for
convenience and customs purposes, our written
description of the scope of these
investigations is dispositive.

Amended Final Determination and Antidumping Duty Order:
Certain Welded Stainless Steel Butt-Weld Pipe Fittings From
Taiwan, 58 Fed. Reg. 33,250 (Dep’t Commerce, June 16, 1993)
("Order").
Court No. 97-10-01913 Page 4

subject merchandise contained in the petition, the initial

investigation, and the final determination do not unambiguously

include cast pipe fittings within the scope of the Order. See

Eckstrom I, 22 CIT at , 27 F. Supp.2d at 228. Similarly,

however, the Court held that the Plaintiff had not adequately

demonstrated that the § 351.225(k)(1) criteria are dispositive in

excluding cast pipe fittings from the scope of the Order. See id.

Accordingly, this Court concluded that Commerce’s determination

that the § 351.225(k)(1) criteria are dispositive was not supported

by substantial evidence. Upon remand, Commerce exercised its

discretion to initiate a formal scope inquiry pursuant to

§ 351.225(k)(2). See Remand Determination at 1.

In its § 351.225(k)(2) inquiry, Commerce preliminarily

determined that Eckstrom’s cast stainless steel butt-weld pipe

fittings are within the scope of the antidumping duty order on

stainless steel butt-weld pipe fittings from Taiwan. See Remand

Determination at 1. Commerce then gave interested parties an

opportunity to comment and to address the § 351.225(k)(2) criteria.

See id. After reviewing the parties’ comments and the record,

Commerce once again determined that Eckstrom’s cast stainless steel

butt-weld pipe fittings are within the scope of the antidumping

duty order on stainless steel butt-weld pipe fittings from Taiwan.

See id. at 1-2.

STANDARD OF REVIEW

The Court reviews Commerce’s scope determination to decide
Court No. 97-10-01913 Page 5

whether it is in accordance with law and supported by substantial

evidence. See 19 U.S.C. § 1516a(b)(1)(B)(i) (1994).

DISCUSSION

In determining whether Eckstrom’s cast pipe fittings are

subject to the Order, Commerce considered the five factors provided

for in § 351.225(k)(2). In evaluating the criteria, Commerce is

directed to "determine whether [the contested] product is

sufficiently similar [to] merchandise unambiguously within the

scope of [the] order as to conclude the two are merchandise of the

same class or kind." Wirth Limited v. United States, 22 CIT ,

, 5 F. Supp.2d 968, 981 (1998), aff’d, No. 98-1391 (Fed. Cir.

Feb. 2, 1999). The Court here addresses Eckstrom’s challenges to

the § 351.225(k)(2) criteria as considered by Commerce in making

its determination.
1. Physical Characteristics

Commerce concluded that Eckstrom’s cast pipe fittings are

covered under the Order because they are made of stainless steel,

under fourteen inches in inside diameter and connected by means of

a butt-weld. See Remand Determination at 6-8. In addition,

Commerce determined that Eckstrom’s cast pipe fittings are made

from T316L stainless steel, "one of the two grades of stainless

steel that the ITC stated are usually used for subject fittings."

Remand Determination at 6-7. The evidence in the record clearly

supports this determination.

Nevertheless, Eckstrom challenges Commerce’s determination,
Court No. 97-10-01913 Page 6

arguing that the evidence clearly establishes that the physical

characteristics of cast pipe fittings are different from wrought5

(or welded) pipe fittings, which are clearly within the Order’s

scope. Eckstrom contends that welded pipe fittings are much

stronger than cast pipe fittings, and that "[i]t is this difference

in strength that makes cast fittings unsuitable for high-pressure,

high-temperature, extremely low-temperature, or contamination-risk

applications." Pl.’s Comments on Remand Scope Det. ("Pl.’s

Comments") at 5. Second, Eckstrom points out that cast pipe

fittings are made to different dimensions than wrought fittings.

See id. at 6. "In other words, the two products are different

sizes and can not [sic] be substituted for one another in the same

piping system." Id. Moreover, cast pipe fittings are made from a

different raw material because the welding and casting

manufacturing processes give the same grade of steel, here T316L,

different physical properties. See id. at n.6. "Thus, [according

to Eckstrom,] there is no respect in which the physical

characteristics of the two products are the same." Id.

Commerce replies that the scope of the Order refers to pipe

fittings that are used where "corrosion of the piping system will

occur if material other than stainless steel is used," thereby

suggesting that the strength of the pipe fittings is irrelevant.

See Def.’s Resp. at 11. With respect to the dimensions of the

5
"The term ’wrought’ distinguishes forged iron or steel pipe
from cast-iron pipe." THE MAKING, SHAPING AND TREATING OF STEEL 1019
(William T. Lankford, Jr., et al. eds., 10th ed. 1985). Welded
pipe fittings are wrought.
Court No. 97-10-01913 Page 7

fittings, Commerce notes that the only dimensional requirements

necessary are that the pipe fitting be less than fourteen inches in

inside diameter. See id.6

The Court declines to re-weigh the evidence here. See Consolo

v. Federal Maritime Commission, 383 U.S. 607, 620 (1966) (noting

that the substantial evidence standard "frees the reviewing courts

of the time-consuming and difficult task of weighing the evidence,

it gives proper respect to the expertise of the administrative

tribunal and it helps promote the uniform application of the

statute."). Essentially, Plaintiff highlights the differences

between its cast fittings and the fittings unambiguously covered by

the Order and urges the Court to reinterpret the record from this

standpoint. It is well-established, however, that Commerce has

discretion in balancing the § 351.225(k)(2) criteria. See e.g.,

Smith Corona Corp. v. United States, 12 CIT 854, 869, 698 F. Supp.

240, 253 (1988).7 Moreover, under the § 351.225(k)(2) criteria,

6
Commerce also argues that "Eckstrom’s explanation of the
manufacturing process of cast and wrought fittings [is] not
illuminating as to the proper interpretation of the scope of the
Order, as the scope language does not discuss manufacturing
process as a parameter for including or excluding any type of
fittings." Remand Determination at 7. Because the Court’s
affirmation does not rely on this argument, however, the Court
declines to address it further.
7
In Smith Corona, the court applied what were known as the
Diversified Products criteria from Diversified Products Corp. v.
United States, 6 CIT 155, 162, 572 F. Supp. 883, 889 (1983). The
Diversified criteria were subsequently codified in the federal
regulations and are currently found at 19 C.F.R. § 351.225(k)(2).
Although the § 351.225(k)(2) and Diversified Products criteria do
not conform exactly, they are substantially similar such that the
reasoning in Smith Corona still applies. Cf. Wirth, 22 CIT at
, 5 F. Supp.2d at 973 n.4.
Court No. 97-10-01913 Page 8

Commerce need only demonstrate that the general physical

characteristics of the products under consideration are

"sufficiently similar" in order to conclude that the two are of the

same class or kind. Wirth, 22 CIT at , 5 F. Supp. 2d at 981;

Smith Corona, 12 CIT at 860-61, 698 F. Supp. at 245-46 (finding

that different components constitute physical differences but do

not necessarily add up to a different class or kind).

Here, Commerce’s focus on size, grade, and the corrosion

resistance of stainless steel is sufficient to support its

conclusion. Accordingly, the Court finds Commerce’s determination

with respect to physical characteristics to be supported by

substantial evidence.
2. Expectations of the Ultimate Purchaser

Commerce found that pulp and paper companies are the primary

customers of cast pipe fittings and that they use these fittings to

build process piping systems. See Remand Determination at 9.

Commerce also determined that "as the subject merchandise is used

in a variety of applications, expectations of end-users will not be

identical, i.e., expectations will necessarily differ depending

upon the use of the product. However, when used in similar

applications, e.g., corrosion resistance, the expectations are

similar." Id. Commerce noted that Eckstrom admits that its cast

pipe fittings are used where corrosion of the piping system is a

concern, which is one of the factors expressed in the scope of the

Order. See id. Based on this finding, Commerce concluded that

"there is similarity in the expectations of the end[-]users of
Court No. 97-10-01913 Page 9

Eckstrom’s cast pipe fittings and fittings subject to the [O]rder."

Id.

Eckstrom disagrees, arguing that end-users have very different

expectations for cast and welded pipe fittings. See Pl.’s Comments

at 7. The ultimate purchasers of Eckstrom’s cast pipe fittings are

generally pulp and paper companies; the ultimate purchasers of its

welded pipe fittings are semiconductor manufacturers. See id. at

6. "Welded pipe fittings are stronger and suitable where there are

additional concerns about contamination, extreme-temperature, and

extreme-pressure in the piping system. . . . Cast fittings are

weaker, less reliable and less expensive." Id. at 7. In essence,

Eckstrom contends that Commerce simply identifies a generality--

that both fittings are used in piping systems where corrosion is a

concern--and then asserts that this generality encompasses the

expectations of end-users for both products. Id. at 8.

In response, Commerce reiterates the position taken in its

Remand Determination. There, Commerce concluded that the

expectations of the end-users do not have to be identical for the

cast pipe fittings to be covered by the scope of the Order. See

Remand Determination at 9. Commerce maintains that even if the

expectations vary, there is still a general application that

encompasses similar expectations, i.e., piping systems where

corrosion resistance is desired. See id.

To properly examine § 351.225(k)(2)(ii), it is necessary to

look at both what the expectations are and who the ultimate

purchasers are. Cf. Diversified Products, 6 CIT at 162, 572 F.
Court No. 97-10-01913 Page 10

Supp. at 889. With respect to the latter, Eckstrom acknowledges

that its cast pipe fittings are sold to pulp and paper companies.

See Pl.’s Comments at 6. Similarly, Commerce notes that the ITC

determination in this case referred to pulp and paper companies as

one of the end-users of the subject merchandise under

consideration. See Remand Determination at 8-9. Meanwhile,

Eckstrom points out that it sells its welded pipe fittings to high-

tech semiconductor manufacturers. See Pl.’s Comments at 6.

Nonetheless, record evidence also indicates that some of Eckstrom’s

customers have purchased both cast and welded pipe fittings. See

Pl.’s Dec. 16, 1998, Questionnaire Resp. at 17. Based on the

record evidence as a whole, this Court finds that Commerce’s

determination that cast and welded pipe fittings share similar

ultimate purchasers is supported by substantial evidence.

With regard to expectations, Commerce concludes that

purchasers of cast and welded pipe fittings have similar

expectations because both are expected to prevent corrosion of

piping systems. See Remand Determination at 9. Eckstrom argues

that the two products would never be substitutes for each other in

the same piping system and thus the purchasers of each have

completely different expectations.8 See Pl.’s Comments at 6-8.

The Court does not find that Plaintiff’s arguments establish

that Commerce’s conclusion that cast and welded pipe fitting

8
Eckstrom states that "[w]elded pipe fittings are stronger
and suitable where there are additional concerns about
contamination, extreme-temperature, and extreme-pressure in the
piping system," while "[c]ast fittings are weaker, less reliable,
and less expensive." Pl.’s Comments at 7.
Court No. 97-10-01913 Page 11

purchasers have similar expectations is not supported by

substantial evidence. In Wirth, the court upheld Commerce’s

determination that purchasers of CST profile slabs and carbon steel

plate had similar expectations, even though there were uses for

which the products were not substitutes. See Wirth, 22 CIT at

, 5 F. Supp. 2d at 981. Furthermore, in Smith Corona, 12 CIT at

866, 698 F. Supp. at 250, the court looked at the motivations of

the ultimate purchasers to conclude that consumers who purchase

typewriters with text memory are in essence purchasing typewriters

with an added feature, not a different product altogether.

Here, welded pipe fittings, unlike cast pipe fittings, have

characteristics that enable them to be used under high pressure,

high temperature, or contamination sensitive conditions.

Nevertheless, they also share similar characteristics with cast

pipe fittings in that they have similar dimensions, are made of the

same material, connect by means of a butt-weld, and are expected to

prevent corrosion of piping systems.

It is not the task of this Court to review the record evidence

to determine whether a different conclusion could be reached, but

to determine whether Commerce’s conclusion is supported by

substantial evidence. See Timken Co. v. United States, 12 CIT 955,

962, 699 F. Supp. 300, 306 (1988). Commerce’s determination that

purchasers of cast and welded pipe fittings have similar

expectations because both are expected to prevent corrosion of

piping systems is substantially supported by the record.
Court No. 97-10-01913 Page 12

3. Ultimate Use of the Product

Commerce determined that "the ultimate uses of Eckstrom’s cast

pipe fittings are the same as those of fittings which the [O]rder

is intended to cover." Remand Determination at 10. Commerce’s

position relies on the Order’s requirement that pipe fittings

subject to the Order be "used where one or more of the following

conditions is a factor: (1) [c]orrosion of the piping system will
occur if material other than stainless steel is used . . . ."9 Id.

Commerce construes the language "one or more" to mean at least one.

See id. Eckstrom’s cast pipe fittings may be used where corrosion

of the piping system will occur if material other than stainless

steel is used. See Pl.’s Dec. 16, 1998, Questionnaire Response at

12. Thus, Commerce contends, Eckstrom’s cast pipe fittings and

welded pipe fittings share similar end uses. See id.

According to Eckstrom, however, Commerce’s analysis is

"nonsensical" because it does not address the differences in the

specific end uses of cast pipe fittings and welded pipe fittings.

See Pl.’s Comments at 8-10. Eckstrom argues,

An almost infinite number of products are suitable for
use under any single listed condition, but only wrought
pipe fittings are suitable for use under any combination
("one or more") of the requisite conditions . . . Because
cast fittings are not suitable for use under any

9
The scope description states that subject merchandise is
used where one or more of the following conditions is a factor in
designing the piping system: 1) corrosion of the piping system
will occur if material other than stainless steel is used; 2)
contamination of the material in the system by the system itself
must be prevented; 3) high temperatures are present; 4) extreme
low temperatures are present; and 5) high pressures are contained
within the system. See Remand Determination at 7.
Court No. 97-10-01913 Page 13

combination of the listed conditions, cast fittings
cannot be within the scope of the [O]rder.

Id. at 9. Eckstrom further contends that Commerce has not

indicated that welded pipe fittings are actually used in the same

applications as cast pipe fittings. See id. In addition, Eckstrom

argues that the petitioner’s absence from commenting in this scope

inquiry indicates that it considers cast fittings to be outside the

scope of the Order. See id. at 10.

In response, Commerce reiterates its Remand Determination

position and counters that there could be many reasons for

petitioner’s non-participation in the remand proceeding. See

Def.’s Resp. at 15-16.

Commerce’s reliance on one of the five listed uses of the

product is reasonable. The Order states that the pipe fittings

subject to the Order are "used where one or more of the following

conditions is a factor". Order at 33,250 (emphasis added). The

use of the term "or" clearly indicates that the five conditions

were listed in the alternative. This Court finds unconvincing

Eckstrom’s argument that a combination of conditions must be shown

for the cast pipe fittings to be covered by the scope. Nothing in

the Order requires Commerce to demonstrate that cast pipe fittings

are used for more than one of the stated purposes. That Plaintiff

"can point to evidence . . . which detracts from . . . [Commerce’s]

decision and can hypothesize a . . . basis for a contrary

determination is neither surprising nor persuasive." Matsushita

Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d

927, 936 (1984). In addition, Eckstrom’s contention that
Court No. 97-10-01913 Page 14

petitioner’s non-participation is indicative of one or the other

position is unpersuasive. As Commerce has stated, "there may be

many different reasons why the petitioner has not filed comments."

Id. at 16. Accordingly, this Court holds that Commerce’s

determination regarding the ultimate use of the product criterion

of § 351.225(k)(2) is supported by substantial evidence on the

record and otherwise in accordance with law.

4. Channels of Trade

Commerce determined that there is some overlap between

Eckstrom’s channels of distribution for its cast pipe fittings and

welded pipe fittings because Eckstrom sells both products to

contractors and to industrial distributors. See Remand

Determination at 11. Also, Eckstrom sometimes sells both products

out of inventory and maintains one sales office for both types of

fittings. See id. Commerce contends that half of Eckstrom’s

customers purchase both products, contradicting Eckstrom’s claims

that there are different markets for each. See id. Commerce cites

the ITC’s determination that, in general, a vast majority of pipe

fittings are distributed through distributors, a sales practice

similar to Eckstrom’s. See id. In addition, Eckstrom admits to

targeting pulp and paper companies for sales of cast pipe fittings,

industries identified by the ITC as primary customers of the

stainless steel butt-weld pipe fittings subject to its

investigation. See id. at 12. Commerce, therefore, concludes that

Eckstrom’s primary market for sales of cast pipe fittings is

similar to the markets for stainless steel butt-weld pipe fittings
Court No. 97-10-01913 Page 15

subject to the Order. On this basis, Commerce determined that both

cast and welded pipe fittings have similar channels of trade, and

therefore, the cast pipe fittings are covered by the Order. See

id.

Eckstrom argues that its channels of trade for cast and welded

pipe fittings are distinct. See Pl.’s Comments at 10. Eckstrom

contends it has demonstrated that the two products are sold

differently; have different uses; are supplied from different

sources; and have different pricing structures. See id. According

to Eckstrom, just because both products are sold to contractors and

industrial distributors does not support the conclusion that they

are the same product that is described in an antidumping order.

See id. at 11. In essence, Eckstrom argues that the channels of

trade Commerce looks to here are too broad and that Commerce must

be more specific in considering the channels of trade.

Commerce responds that, "[w]hile it is true that similarities

in channels of trade would not require a conclusion that the two

products are within the scope of an antidumping duty order, such

similarities are certainly relevant to Commerce’s inquiry." Def.’s

Resp. at 17. Commerce maintains, "[T]hat Eckstrom draws its own

conclusions from the evidence does not mean that Commerce’s

determination is unsupported by substantial evidence." Id. at 18.

The regulation does not direct Commerce to be broad or

specific in looking at channels of trade, but simply requires

Commerce to consider the two products’ channels of trade. When a

statute is silent or ambiguous, the Court must defer to Commerce’s
Court No. 97-10-01913 Page 16

reasonable interpretation. See Koyo Seiko v. United States, 36

F.3d 1565, 1573 (Fed. Cir. 1994). Therefore, Commerce has

discretion in determining the appropriate channel of trade to be

reviewed under the regulation.

Moreover, this court has upheld Commerce’s use of a broad

channel of trade. For example, in Diversified Products, the court

sustained Commerce’s finding that two products "sold by wholesale

distributors in kit form to original equipment manufacturers" had

similar channels of trade. 6 CIT at 162, 572 F. Supp. at 889.

Although Eckstrom disagrees with Commerce’s determination that

there is an overlap between the channels of distribution for cast

and weld pipe fittings, this does not mean that Commerce’s

determination was not supported by substantial evidence. See

Consolo, 383 U.S. at 620 ("the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by substantial

evidence"). Once again, Plaintiff’s argument simply invites this

Court to re-weigh the record evidence supporting Commerce’s

determination, which the Court will not do. Thus, this Court finds

that Commerce’s determination that cast pipe fittings and welded

pipe fittings are sold within the same channels of trade is

supported by substantial evidence on the record and otherwise in

accordance with law.
5. Manner of Advertising or Display

Commerce concludes that Eckstrom treats both its cast and

welded pipe fittings similarly in terms of advertising and display
Court No. 97-10-01913 Page 17

because neither are advertised or displayed. See Remand

Determination at 12. Eckstrom counters that it sells its cast and

welded pipe fittings differently. See Pl.’s Comments at 11.

Eckstrom maintains that it stores cast pipe fittings in inventory

while it purchases and sells welded pipe fittings on an as-needed

basis only. See id. Furthermore, Eckstrom provides inspection and

quality control for its cast pipe fittings, but not for its welded

pipe fittings. See id. at 11-12. Moreover, cast pipe fittings are

sold to paper and pulp industries; welded pipe fittings are sold to

the semiconductor industry. See id. at 12. Eckstrom also argues

that the absence of advertising or display practices for both

products does not mean that the products are similar. Rather,

Eckstrom contends that at most this means that advertising and

display practices are irrelevant to the determination of whether

the products are similar. See id.

With respect to selling practices, Commerce responds that the

manner in which the products are sold is irrelevant to the fifth

§ 351.225(k)(2) criterion because it is not contemplated by the

regulation. See Def.’s Resp. at 20. The regulation "makes no

reference to the manner in which the merchandise is sold; rather,

the regulation directs Commerce to consider the ’manner in which

the product is advertised and displayed.’" Id. (citing 19 C.F.R.

§ 351.225(k)(2)(v)). The Court agrees. Criterion

351.225(k)(2)(iv) requires some examination of selling practices;

criterion 351.225(k)(2)(v) does not.

Moreover, with respect to advertising and display, this Court
Court No. 97-10-01913 Page 18

finds Eckstrom’s argument unpersuasive. Although one may conclude,

as Eckstrom does, that the absence of advertising or display

practices for two products does not indicate that the two products

are advertised and displayed similarly, "the possibility of drawing

two inconsistent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by substantial

evidence." Consolo, 383 U.S. at 620. Commerce has discretion to

evaluate the significance of the evidence indicating the absence of

advertising or display practices for the two products. The absence

of advertising or display practices for Eckstrom’s cast and welded

pipe fittings reasonably leads to the conclusion that Eckstrom

treats both products similarly in terms of advertising and display.

Therefore, Commerce’s determination that cast and welded pipe

fittings are advertised and displayed similarly is supported by

substantial evidence.
Court No. 97-10-01913 Page 19

CONCLUSION

In sum, the Court finds that Commerce’s determination with

respect to the § 351.225(k)(2) criteria is supported by substantial

evidence and otherwise in accordance with law. Therefore, the

Court upholds Commerce’s conclusion that cast stainless steel butt-

weld pipe fittings are of the same class or kind as welded

stainless steel butt-weld pipe fittings subject to the Order.

Accordingly, this Court sustains Commerce’s determination that cast

stainless steel butt-weld pipe fittings are subject to the Order.

Donald C. Pogue
Judge

Dated: September 20, 1999
New York, New York