                                       Slip Op. 14- 66

               UNITED STATES COURT OF INTERNATIONAL TRADE

_________________________________
                                 :
SIEMENS ENERGY, INC., et al.,    :
                                 :
           Plaintiffs,           :
                                 :
                   v.            :              PUBLIC VERSION
                                 :              Before: Mark A. Barnett, Judge
UNITED STATES,                   :
                                 :              Consol. Court No. 13-00104
           Defendant,            :
                                 :
                   and           :
                                 :
WIND TOWER TRADE COALITION,      :
                                 :
           Defendant-Intervenor. :
________________________________ :



                                        OPINION

[Plaintiffs challenge numerous aspects of the United States International Trade
Commission’s affirmative determination in the final injury investigation. The court
denies Plaintiffs’ motions for judgment on the agency record.]

                                                                        6/17/2014
                                                              Dated: ______________

Elliot J. Feldman, Baker Hostetler, of Washington, DC, argued for plaintiff Siemens
Energy, Inc. With him on the brief was Michael S. Snarr.

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of
Washington, DC, argued for plaintiffs Titan Wind Energy (Suzhou) Co., Ltd., CS Wind
Tech Co., Ltd., CS Wind Vietnam Co. Ltd., and Chengxi Shipyard Co., Ltd. With him on
the brief were Bruce M. Mitchell, Max F. Schutzman, Andrew B. Schroth, Andrew T.
Schutz, and Kavita Mohan.

Michael K. Haldenstein, Attorney, Office of the General Counsel, U.S. International
Trade Commission, of Washington, DC, argued for defendant. With him on the brief
Court No. 13-00104                                                                  Page 2


were Dominic L. Bianchi, General Counsel, and Neal J. Reynolds, Assistant General
Counsel for Litigation.

Daniel B. Pickard, Wiley Rein LLP, of Washington, DC, argued for defendant-intervenor.
With him on the brief were Alan H. Price, Robert E. DeFrancesco, III, and Usha
Neelakantan.


              Barnett, Judge: Plaintiffs, Siemens Energy, Inc. (“Siemens”), Titan Wind

Energy (Suzhou), CS Wind Tech, CS Wind Vietnam, and Chengxi Shipyard

(collectively, “Titan”), move, pursuant to USCIT R. 56.2, for judgment on the agency

record, challenging the United States International Trade Commission’s (“Commission”

or “ITC”) affirmative determination in the final injury investigations in antidumping and

countervailing duty investigations concerning utility scale wind towers (“wind towers”)

from the People’s Republic of China (“China”) and in an antidumping investigation of

wind towers from the Socialist Republic of Vietnam (“Vietnam”) published in Utility Scale

Wind Towers from China and Vietnam, 78 Fed. Reg. 10,210 (ITC Feb. 13, 2013) (“Final

Determination”), and the accompanying memorandum, Utility Scale Wind Towers from

China and Vietnam, USITC Pub. 4372, Inv. Nos. 701-TA-486 and 731-TA-1195-1196

(Final) (Feb. 2013) (“Views of the Commission” or “Views”). 1 For the reasons stated

below, the court denies Siemens’ and Titan’s motion.




1All citations to the Views of the Commission are to the confidential version of the
document. All six Commissioners joined in sections I-VI of the Views. Section VII of the
Views (“Material Injury By Reason of Subject Imports”) represents the views of
Chairman Williamson and Commissioner Aranoff. Commissioner Pinkert issued a
separate threat of injury determination, which will be cited hereafter as “Pinkert Views.”
Court No. 13-00104                                                                  Page 3


                   BACKGROUND AND PROCEDURAL HISTORY

             On December 29, 2011, the Wind Tower Trade Coalition 2 filed petitions

with the United States Department of Commerce (“Commerce”) and the Commission,

seeking the imposition of antidumping and countervailing duties on wind towers

imported from China and antidumping duties on wind towers from Vietnam. Commerce

issued notices initiating investigations on January 24, 2012. See Utility Scale Wind

Towers from the People’s Republic of China and the Socialist Republic of Vietnam, 77

Fed. Reg. 3440 (Dep’t Commerce Jan. 24, 2012) (initiation of antidumping duty

investigations); Utility Scale Wind Towers from the People’s Republic of China, 77 Fed.

Reg. 3447 (Dep’t Commerce Jan. 24, 2012) (initiation of countervailing duty

investigation). Following a preliminary investigation, the Commission issued a

preliminary determination on February 13, 2012, voting in a 5-0 decision that there was

a reasonable indication that an industry in the United States was threatened with

material injury by imports of wind towers from China and Vietnam. Utility Scale Wind

Towers from China and Vietnam, 77 Fed. Reg. 9700 (ITC Feb. 17, 2012) (preliminary

determination).

             In the final investigation, the Commission relied on data from certified

questionnaire responses from foreign producers of subject imports and from U.S.

importers and domestic producers of the like product. The period of investigation




2The Wind Tower Trade Coalition consists of four domestic producers, Broadwind
Towers, Inc.; DMI Industries; Katana Summit LLC; and Trinity Structural Towers, Inc.
Court No. 13-00104                                                                  Page 4

(“POI”) spanned 2009 through the first six months of 2012 (“interim 2012”). Views at 9

n.30. Six domestic producers submitted questionnaire responses, accounting for the

vast majority of U.S. shipments of wind towers during 2011. 3 Five Chinese and two

Vietnamese producers submitted questionnaire responses, providing data for almost all

subject imports during the POI. 4 Eleven U.S. importers submitted questionnaire

responses, representing over 95 percent of subject imports during the POI. 5

              Relying on this data, the Commission reached a divided final

determination. Four Commissioners found “no material injury,” and two Commissioners

made affirmative determinations on the basis of “material injury.” Three Commissioners

found “no threat of material injury,” and one made an affirmative determination on the

basis of “threat of material injury.” 6 Combined, the two affirmative determinations based

on material injury, by Chairman Williamson and Commissioner Aranoff, and the one

affirmative determination based on threat of material injury, by Commissioner Pinkert,

resulted in a final affirmative determination that the domestic industry was materially

injured or threatened with material injury by reason of Chinese and Vietnamese imports

of wind towers.




3
  The six domestic producers accounted for more than [[        ]] percent of U.S. shipments
during 2011. Views at 4 (citing Confidential Staff Report, INV-LL-002 (Jan. 7, 2013)
(revised by INV-LL-006, Jan. 11, 2013) (“Staff Report”) at III-1 n.1).
4
  Views at 4 (citing Staff Report at VII-5, VII-11).
5
  Views at 4 (citing Staff Report at IV-1).
6
  The two Commissioners who made affirmative determinations on the basis of material
injury did not make a threat of material injury determination.
Court No. 13-00104                                                                  Page 5


             The Commission defined wind towers as “large tubular steel towers that

are part of wind turbines.” Views at 6. It elaborated:

      Wind turbines convert the mechanical energy of wind to electrical energy
      and are comprised of three main components – the nacelle, rotor, and
      tower. The nacelle houses the wind turbine’s main power generation
      components (the gearbox, generator, and other components), while the
      rotor typically consists of three blades and the hub. The nacelle sits on top
      of the wind tower. . . . [W]ind towers within the scope of these investigations
      are 50 meters or more in height and designed to support the nacelle and
      rotor blades in a wind turbine with a minimum rated electrical power
      generation capacity in excess of 100 kilowatts. 7


7 Commerce defined the scope of the imported merchandise under investigation in
further detail, as including:

      [C]ertain wind towers, whether or not tapered, and sections thereof. Certain
      wind towers are designed to support the nacelle and rotor blades in a wind
      turbine with a minimum rated electrical power generation capacity in excess
      of 100 kilowatts (‘‘kW’’) and with a minimum height of 50 meters measured
      from the base of the tower to the bottom of the nacelle (i.e., where the top
      of the tower and nacelle are joined) when fully assembled.

      A wind tower section consists of, at a minimum, multiple steel plates rolled
      into cylindrical or conical shapes and welded together (or otherwise
      attached) to form a steel shell, regardless of coating, end-finish, painting,
      treatment, or method of manufacture, and with or without flanges, doors, or
      internal or external components (e.g., flooring/decking, ladders, lifts,
      electrical buss boxes, electrical cabling, conduit, cable harness for nacelle
      generator, interior lighting, tool and storage lockers) attached to the wind
      tower section. Several wind tower sections are normally required to form a
      completed wind tower.

      Wind towers and sections thereof are included within the scope whether or
      not they are joined with nonsubject merchandise, such as nacelles or rotor
      blades, and whether or not they have internal or external components
      attached to the subject merchandise.

      Specifically excluded from the scope are nacelles and rotor blades,
      regardless of whether they are attached to the wind tower. Also excluded
Court No. 13-00104                                                                  Page 6



Views at 6 (citing Staff Report at I-8 to I-9). Despite limited interchangeability between

wind towers manufactured to different original equipment manufacturers’ (“OEMs”)

specifications, the Commission found that wind towers within the scope of the

investigation constituted a single domestic like product because they shared common

physical characteristics and uses, channels of distribution, manufacturing facilities,

production processes and employees, and producer and customer perceptions. Views

at 7-8. The Commission further determined that subject imports compete with each

other and the domestic like product. Views at 11-14.

              Against this backdrop, two Commissioners made affirmative

determinations that subject imports had materially injured the domestic industry. They

found that the volume and increase in volume of Chinese and Vietnamese wind towers

were significant in absolute terms and relative to domestic consumption and production.

Views at 27-30. They further decided that these imports suppressed prices in the

domestic market, despite the absence of underselling and price depression on a total

delivered price basis. Views at 30-35. They thus determined that the subject imports’

high volumes and price effects had an adverse impact on the domestic industry over the

POI, and particularly during interim 2012. Views at 35-42. They concluded:




       are any internal or external components which are not attached to the wind
       towers or sections thereof.

Views at 5-6 (citing Utility Scale Wind Towers from the People’s Republic of
China, 77 Fed. Reg. 75,978 (Dep’t Commerce Dec. 26, 2012); 77 Fed. Reg.
75,985 (Dep’t Commerce Dec. 26, 2012); 77 Fed. Reg. 75,993-94 (Dep’t
Commerce Dec. 26, 2012)).
Court No. 13-00104                                                                   Page 7


       The increasing volumes of subject imports resulted in reduced growth in
       sales volumes and U.S. shipments and suppressed domestic price
       increases despite a robust growth in demand at the end of the period. Their
       effects have also included lower rates of capacity utilization, as well as
       declining market share and financial losses. . . .

       [Therefore,] we conclude that there is a causal nexus between the subject
       imports and the poor performance of the domestic industry. Consequently,
       we find that the domestic industry is materially injured by reason of subject
       imports.

Views at 42.

               A third Commissioner made an affirmative determination on the basis that

the subject imports posed an imminent threat of material injury to the domestic wind

tower industry. Weighing the statutory factors for finding threat, 19 U.S.C. § 1677(7)(F),

he found, inter alia, that the subject imports competed in all major regions of the United

States; Chinese and Vietnamese producers could accelerate production and delivery;

subject import prices were trending downward; China had inventories of undelivered

product; and subject import volume was significant and would likely increase

significantly. Pinkert Views at 3-8. He found that demand for wind towers would soon

moderate, such that “in the near future, it should take a much smaller volume of subject

imports to constitute a significant share of the market than it took” during the POI.

Pinkert Views at 6. He thus concluded that subject imports were likely to have an

adverse impact on the domestic industry in the imminent future. Pinkert Views at 7-8.

The two affirmative determinations based on material injury, combined with the third

affirmative determination based on threat of material injury, resulted in a final affirmative

injury determination.
Court No. 13-00104                                                                   Page 8

              Plaintiffs now challenge this Final Determination on several grounds. (See

generally Siemens Energy, Inc.’s Rule 56.2 Motion for Judgment on the Agency Record

(“Siemens Mot.”); Memorandum of Law in Support of Plaintiffs’ Rule 56.2 Motion for

Judgment Upon the Agency Record (“Titan Mot.”).) First, Siemens argues that the court

should not defer to the Commission’s affirmative determination because the

determination did not arise from a majority vote for either material injury or threat of

material injury. (Siemens Mot. 14-18.) Second, Titan and Siemens contest the material

injury determination, alleging that the Commission improperly found that (1) the volume

of subject imports displaced a significant volume of domestic wind towers; (2)

competition from subject imports suppressed domestic wind tower prices; and (3)

subject imports adversely impacted the domestic industry. (See generally Siemens

Mot.; Titan Mot.) Third, they challenge Commissioner Pinkert’s threat of material injury

determination, alleging that he improperly found that the subject imports posed an

imminent threat of material injury to the domestic wind tower industry. (See generally

Siemens Mot.; Titan Mot.) The court has subject matter jurisdiction pursuant to 28

U.S.C. § 1581(c).

                                STANDARD OF REVIEW

              An ITC determination is “presumed to be correct,” and the burden of

proving otherwise rests upon the challenging party. 28 U.S.C. § 2639(a)(1). The court

will uphold an agency determination that is supported by substantial evidence and

otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).
Court No. 13-00104                                                                  Page 9


              Substantial evidence is “‘such relevant evidence as a reasonable mind

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

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

NLRB, 305 U.S. 197, 229 (1938)). It requires ‘“more than a mere scintilla,’” but “‘less

than the weight of the evidence.’” Nucor Corp. v. United States, 34 CIT __, __, 675 F.

Supp. 2d 1340, 1345 (2010) (quoting Altx, Inc. v. United States, 370 F.3d 1108, 1116

(Fed. Cir. 2004)). In determining whether substantial evidence supports the

Commission’s determination, the court must consider “the record as a whole, including

evidence that supports as well as evidence that ‘fairly detracts from the substantiality of

the evidence.’” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir.

2003) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)).

The Commission need not address every piece of evidence presented by the parties;

absent a showing to the contrary, the court presumes that the Commission has

considered all of the record evidence. Aluminum Extrusions Fair Trade Comm. v.

United States, 36 CIT __, __, 2012 WL 5201218, at *2 (2012) (citing USEC Inc. v.

United States, 34 F. App’x 725, 731 (Fed. Cir. 2002)).

              That a plaintiff can point to evidence that detracts from the agency’s

conclusion or that there is a possibility of drawing two inconsistent conclusions from the

evidence does not preclude the agency’s finding from being supported by substantial

evidence. Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933, 936 (Fed.

Cir. 1984) (citing Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 619-20 (1966);

Armstrong Bros. Tool Co. v. United States, 626 F.2d 168, 170 n.4 (C.C.P.A. 1980)).
Court No. 13-00104                                                                 Page 10


Moreover, “when adequate evidence exists on both sides of an issue, assigning

evidentiary weight falls exclusively within the authority of the Commission.” Nippon

Steel Corp. v. United States, 458 F.3d 1345, 1358 (Fed. Cir. 2006). The court may not

“‘even as to matters not requiring expertise . . . displace the [agency’s] choice between

two fairly conflicting views, even though the court would justifiably have made a different

choice had the matter been before it de novo.’” Mitsubishi Materials Corp. v. United

States, 20 CIT 328, 331, 918 F. Supp. 422, 425 (1996) (quoting Universal Camera

Corp. v. NLRB, 340 U.S. 474, 488 (1951) (ellipses in original)). Thus, the court “may

not reweigh the evidence or substitute its own judgment for that of the agency.” Usinor

v. United States, 28 CIT 1107, 1111, 342 F. Supp. 2d 1267, 1272 (2004) (citation

omitted).

              Furthermore, when presented with a challenge to the Commission’s

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

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

Shandong TTCA Biochem. Co. v. United States, 45 CIT at __, __, 774 F. Supp. 2d

1317, 1329 (2011) (quotation marks omitted). “As long as the agency’s methodology

and procedures are a reasonable means of effectuating the statutory purpose . . . the

court will not . . . question the agency’s methodology.” Int’l Imaging Materials, Inc. v.

United States, 30 CIT 1181, 1189 (2006) (quoting Ceramica Regiomontana, S.A. v.

United States, 10 CIT 399, 404-05, 636 F. Supp. 961, 966 (1986)) (first ellipses in

original).
Court No. 13-00104                                                                     Page 11

              The two-step framework provided in Chevron, U.S.A., Inc. v. Natural Res.

Defense Council, Inc., 467 U.S. 837, 842-45 (1984), governs judicial review of the

Commission’s interpretation of the antidumping and countervailing duty statutes. Nucor

Corp. v. United States, 414 F.3d 1331, 1336 (Fed. Cir. 2005). First, the court must

determine ‘“whether Congress has directly spoken to the precise question at issue.’”

Heino v. Shinseki, 683 F.3d 1372, 1377 (Fed. Cir. 2012) (quoting Chevron, 467 U.S. at

842). If Congress’s intent is clear, “‘that is the end of the matter . . . .”’ Id. (quoting

Chevron, 467 U.S. at 842-43). However, “if the statute is silent or ambiguous,” the court

must determine whether the agency’s action “is based on a permissible construction of

the statute.” Dominion Res., Inc. v. United States, 681 F.3d 1313, 1317 (Fed. Cir. 2012)

(citing Chevron, 467 U.S. at 842-43).

                                        DISCUSSION

       I.     The Tariff Act’s Tie-Vote Provision
              a. Siemens’ Contentions
              Siemens argues that the court should not defer to the Commission’s

affirmative determination because the determination did not arise from a majority vote

for either material injury or threat of material injury. (Siemens Mot. 14-16.) Siemens

points out that four of the six Commissioners found no material injury to the domestic

industry, while just two of the six Commissioners found present material injury.

(Siemens Mot. 16-17.) As to the “threat of material injury,” only one Commissioner

found threat, three found no threat, and the two who found material injury did not vote

with respect to threat. (Siemens Mot. 17.) Thus, Siemens argues, the Commission

reached an affirmative determination by aggregating the two material injury votes with
Court No. 13-00104                                                                 Page 12


the single threat of material injury vote, even though these determinations arise from

different criteria and analyses. (See Siemens Mot. 17-18.) Although Siemens

concedes that the Tariff Act requires aggregation of material injury and threat of material

injury votes to reach an affirmative determination, it opposes judicial deference to an

affirmative determination reached in this manner. (Siemens Mot. 14-15). Instead,

Siemens urges that the court should defer to the majority of Commissioners who made

negative determinations of material injury and threat of material injury. (Siemens Mot.

15-16.)

              Siemens cites two cases for support. It contends that Wind Tower Trade

Coalition v. United States, a recent Federal Circuit decision related to this case, held

that “‘the ITC as a whole makes a finding’” of whether there is material injury. (Siemens

Reply 7.) As a result, disregarding “‘two-thirds of the ITC’s votes’ flouts the purpose of

the statute.” (Siemens Reply 7.) Siemens also relies on Nippon Steel Corp. v. United

States in which the court stated, “‘when the totality of the evidence does not illuminate a

black-and-white answer to a disputed issue, it is the role of the expert fact-finder – here

the majority of the Presidentially-appointed, Senate-approved Commissioners – to

decide which side’s evidence to believe.’” (Siemens Reply 6.) Siemens argues these

cases indicate that the court should defer to the majority of Commissioners, here, the

four Commissioners who found no material injury, rather than the views of the two

Commissioners reflected on the views of the Commission.
Court No. 13-00104                                                                   Page 13


              b. Analysis

              The Tariff Act considers the Commission’s voting pattern relevant in two

scenarios. First, it is relevant under the section of the Act that explains how to

aggregate votes when the Commission is evenly-divided. This section of the Act states:

       If the Commissioners voting on a determination by the Commission . . .
       are evenly divided as to whether the determination should be affirmative
       or negative, the Commission shall be deemed to have made an affirmative
       determination. For the purpose of applying this paragraph when the issue
       before the Commission is to determine whether there is—

       (A)    material injury to an industry in the United States,

       (B)    threat of material injury to such an industry, or

       (C)    material retardation of the establishment of an industry in the
              United States,

       by reason of imports of the merchandise, an affirmative vote on any of the
       issues shall be treated as a vote that the determination should be
       affirmative.

19 U.S.C. § 1677(11). This section clearly provides that any affirmative vote for

material injury, threat of material injury, or material retardation of the domestic industry

“shall be treated as a vote that the determination should be affirmative” when the

Commissioners are evenly divided as to whether a determination is affirmative or

negative. See id. Thus, an affirmative determination need not arise from three

affirmative votes on the same basis, as long as there are at least three affirmative votes

on any of the three bases. See id.

              In the case of a divided vote by the Commission, as occurred here, this

statutory provision is important. The provision defines an evenly divided vote as an

affirmative determination for purposes of determining whether an antidumping or
Court No. 13-00104                                                                   Page 14


countervailing duty order will be put in place. Moreover, it makes it clear that the

Commission shall be deemed to have made that affirmative determination. The

standard of review to be applied by this court, as established by Congress, is whether

the determination of the Commission is “unsupported by substantial evidence on the

record, or otherwise not in accordance with law…” 19 U.S.C. § 1516a(b)(1)(B)(i). By

making the standard of review applicable to court review of the determination of the

Commission (see 19 U.S.C. §§ 1516a(a)(2)(A)(i)(II), 1516a(a)(2)(B)(i)), and defining a

tie vote as affirmative and as the determination of the Commission (see 19 U.S.C. §

1677(11)), Congress made plain that the same standard of review is applicable to the

Commission determination even when it is based on a split, tie vote.

              The Commission’s voting pattern also is relevant to the sections of the

Tariff Act that deal with the effective date of Commerce’s antidumping and/or

countervailing duty orders when the Commission has reached an affirmative

determination. See 19 U.S.C. §§ 1671e(a), 1673e(a) (providing parallel rules for

countervailing and antidumping duties, respectively); see also Wind Tower Trade Coal.

v. United States, 741 F.3d 89, 96-97 (Fed. Cir. 2014). According to these sections, the

effective date of these orders may be retrospective, from the date the entries were

suspended (the “General Rule”), or prospective, from the date of publication of the final

Commission determination (the “Special Rule”). These Rules provide:

       (1)    General rule

              If the [Commission], in its final determination ... finds material injury
              or threat of material injury which, but for the suspension of
              liquidation ... would have led to a finding of material injury, then
              entries of the [subject merchandise], the liquidation of which has
Court No. 13-00104                                                                       Page 15


              been suspended ..., shall be subject to the imposition of ... duties....

       (2)    Special rule

              If the [ITC], in its final determination ... finds threat of material injury,
              other than threat of material injury described in paragraph (1), ...
              then [subject merchandise] which is entered, or withdrawn from
              warehouse, for consumption on or after the date of publication of
              notice of an affirmative determination of the [ITC] ... shall be subject
              to the [assessment or imposition] of ... duties ..., and [Customs]
              shall release any bond or other security, and refund any cash
              deposit made.

Id. §§ 1671e(b), 1673e(b). “In other words, the General Rule applies if the ITC makes

(1) an affirmative finding of present material injury, or (2) a finding of a threat of material

injury that would have been a finding of present material injury [“but for”] provisional

measures.” Wind Tower, 741 F.3d at 97. The General Rule mandates that antidumping

and countervailing duties be collected retrospectively on merchandise that entered the

United States during the investigation. Id. In contrast, the Special Rule applies when

the ITC finds a threat of material injury that would not be present material injury “but for”

the application of provisional measures. Id. Under the Special Rule, antidumping or

countervailing duties are collected prospectively, from the date the ITC publishes its

final determination, and any provisional cash deposits are refunded. Id.

              In arguing that the court should not defer to an affirmative determination

arising from a divided vote, Siemens conflates the Tariff Act provision dealing with tied

votes with the sections dealing with the effective date of duties. The tied-vote provision

explicitly requires aggregation of material injury and threat of material injury decisions to

reach an affirmative determination without regard to the “but for” findings in sections

1671e(b)(1) and 1673e(b)(1). See, e.g., Metallverken Nederland B.V. v. United States,
Court No. 13-00104                                                                   Page 16


13 CIT 1013, 728 F. Supp. 730 (1989). In contrast, the Tariff Act provision dealing with

the effective date of antidumping and countervailing duties emphasizes the importance

of the “but for” finding when the Commission makes a threat determination, but does not

explain how to treat a divided voting pattern. See Wind Tower, 741 F.3d at 96-97; see

also MBL (USA) Corp. v. United States, 16 CIT 108, 113-14, 787 F. Supp. 202, 207-08

(1992).

              The cases that Siemens cites are inapposite as to whether the court

should decline to defer to a divided affirmative vote or otherwise apply some different,

less deferential, standard of review. The Wind Towers case deals with the vagary of

how to treat a divided voting pattern when applying the General Rule or the Special

Rule for collecting duties. See 741 F.3d at 97. It does not address the issue of

deference to a divided affirmative vote. See generally id. Siemens also misstates the

significance of the Nippon Steel quote that “when the totality of the evidence does not

illuminate a black-and-white answer to a disputed issue, it is the role of . . . the majority

of the . . . Commissioners – to decide which side’s evidence to believe.” 458 F.3d at

1359. Nippon does not concern the question of divided affirmative determinations, and

so the court’s emphasis on the majority of Commissioners lacks the significance with

which Siemens would imbue it.

              The court sees no basis in the statute, precedent, or logic to apply a

different standard of review to affirmative determinations based on a divided vote than it

would apply to an affirmative determination in which a majority of the Commissioners

reached a common conclusion about the nature of the injury. The language of 19
Court No. 13-00104                                                                 Page 17


U.S.C. § 1677(11) provides no basis for treating an affirmative determination by a

divided Commission any differently than any other Commission determination.

Similarly, the standard of review provided in 19 U.S.C. § 1516a(b)(1)(B)(i) does not

suggest any distinction when reviewing a determination by a divided Commission.

Indeed, cases reviewing a determination by a divided Commission have applied the

same “substantial evidence” standard of review as used in cases with more uniform

voting patterns. See, e.g., Metallverken, 13 CIT 1013, 728 F. Supp. 730; cf. Corus

Staal Bv v. United States, 27 CIT 459, 2003 WL 1475045 (2003).

              This approach makes sense given the absence of a manageable

alternative standard of review. Substantial evidence review acknowledges that

substantial evidence may exist to support different conclusions. See Matsushita, 750

F.2d at 936 (citing Consolo, 383 U.S. at 619-20; Armstrong Bros., 626 F.2d at 170 n.4);

see also Metallverken, 13 CIT at 1017, 728 F. Supp. at 734 (“It is well settled that

substantial evidence may exist in a record to support several inconsistent

conclusions.”). Substantial evidence review is not a vote counting exercise. See, e.g.,

Philip Bros., Inc. v. United States, 10 CIT 485, 486, 640 F. Supp. 1340, 1342 (1986)

(finding that the “size of the Commission majority is . . . irrelevant” when reviewing the

determination and that the court “may consider only whether the determination of the

Commission is unsupported by substantial evidence”). Even when four Commissioners

are persuaded by certain evidence, it does not mean that a contrary vote by the other

two Commissioners cannot be supported by substantial evidence or that such

substantial evidence must be reviewed with less deference by this court. Treating
Court No. 13-00104                                                                Page 18


affirmative determinations by a divided Commission differently from uniform

determinations would ask the reviewing court to engage in impermissible reweighing of

the evidence in such cases. See Usinor, 28 CIT at 1111, 342 F. Supp. 2d at 1272; see

also Metallverken, 13 CIT at 1017, 728 F. Supp. at 734. In Metallverken, which

presented the same voting pattern as the underlying determination, the court rejected

plaintiff’s argument to negate an affirmative determination based solely on the findings

of the dissenting commissioners. The court reasoned as follows:

       In asking the Court to negate a commissioner’s determination based upon the
       findings of dissenting commissioners, plaintiffs are, in essence, asking the Court
       to reweigh the evidence. The function of this Court is not to reweigh the
       evidence, but rather to ascertain whether the Commissioner’s determination is
       “unsupported by substantial evidence on the record or otherwise not in
       accordance with law.”

Metallverken, 13 CIT at 1017, 728 F. Supp. at 734 (citations omitted). Thus, contrary to

Siemens’ arguments, the court reviews the Commission’s determination, no matter how

reached, based upon the substantial evidence standard.

       II.   The Material Injury Determination

              Plaintiffs contest the Commission’s material injury determination, alleging

that the Commission improperly found that (1) the volume of subject imports displaced a

significant volume of domestic wind towers; (2) competition from subject imports

suppressed domestic wind tower prices; and (3) subject imports adversely impacted the

domestic industry. (See generally Siemens Mot.; Titan Mot.)

              Pursuant to the Tariff Act, as amended, the Commission determines

whether a domestic industry is materially injured, or threatened with material injury, by

reason of unfairly subsidized or dumped imports. See 19 U.S.C. §§ 1671d(b),
Court No. 13-00104                                                                  Page 19


1673d(b). The Commission will issue an affirmative determination if it finds “present

material injury or a threat thereof” and makes a “finding of causation.” Hynix

Semiconductor, Inc. v. United States, 30 CIT 1208, 1210, 431 F. Supp. 2d 1302, 1306

(2006) (quotation marks omitted). In making a material injury determination, the

Commission evaluates “(1) the volume of subject imports; (2) the price effects of subject

imports on domestic like products; and (3) the impact of subject imports on the domestic

producers of domestic like products.” Id. (citing 19 U.S.C. §§ 1677(7)(B)(i)(I)-(III));

accord GEO Specialty Chems., Inc. v. United States, Slip Op. 09-13, 2009 WL 424468,

at *2 (CIT Feb. 19, 2009). The Commission may also consider “‘such other economic

factors as are relevant in the determination.’” Hynix Semiconductor, 30 CIT at 1210,

431 F. Supp. 2d at 1306 (quoting 19 U.S.C § 1677(7)(B)(ii)).

              a. Volume

              In performing its volume analysis, the ITC must 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.’”

Shandong TTCA Biochem., 45 CIT at __, 774 F. Supp. 2d at 1322 (quoting 19 U.S.C.

§ 1677(7)(C)(i)).

              In its Views, the Commission assessed several metrics and determined

that the volume and the increase in volume of subject imports were significant, both in

absolute terms and relative to consumption. Views at 27. Specifically, the Commission

found that the volume of subject imports, by quantity, grew significantly between 2009

and 2011, and that “[t]he growth in subject imports in interim 2012 relative to interim
Court No. 13-00104                                                                Page 20

2011 was dramatic.” Views at 27 (citing Staff Report at Table IV-2). 8 The Commission

also observed that, although subject imports’ U.S. market share fell slightly between

2009 and 2010, it increased significantly in 2011. Views at 28 (citing Staff Report at

Table IV-6). Likewise, subject imports’ share of the U.S. market, by quantity, rose from

interim 2011 to interim 2012. Views at 28 (citing Staff Report at Table IV-6). The ratio

of subject imports to U.S. production similarly increased substantially both from 2009 to

2011 and from interim 2011 to interim 2012, despite an increase in U.S. production.

Views at 28 (citing Staff Report at Table IV-7).

              The Commission also considered domestic industry volume trends. It

found that the domestic industry’s volume decreased, despite an increase in demand in

interim 2012 prompted by the anticipated expiration of the investment tax credit and the

production tax credit (“PTC”). Views at 19-20 (citing Staff Report at II-11), 28-29. 9 To

benefit from the PTC, the wind turbine had to be operational by the end of 2012. Views

at 19-20 (citing Staff Report at II-11). Thus, OEMs rushed to install wind towers to

benefit from the PTC, leading to a substantial increase in apparent U.S. consumption of

wind towers between interim 2011 and interim 2012. Views at 28 (citing Staff Report at

Table IV-6). Although the Commission acknowledged that the domestic industry’s

market share rose somewhat between 2009 and 2011, it found that it was “far lower . . .




8 Subject imports grew by 41.8 percent between 2009 and 2011 and increased from 456
towers to 1,257 towers from interim 2011 to interim 2012. Views at 27 (citing Staff
Report at Table IV-2).
9 The PTC provided a 2.2 cents per kilowatt-hour credit for the first ten years of a wind

turbine’s operation. Views at 20 (citing Staff Report at II-10 to II-11).
Court No. 13-00104                                                                     Page 21


than at any prior point during the period of investigation” by interim 2012, dropping by

more than [[ ]] points from interim 2011 to interim 2012. Views at 28 (citing Staff Report

at Table IV-6). The Commission found that subject imports disproportionately benefited

from the surge in demand, with their shipments increasing “even more sharply” than the

rise in apparent U.S. consumption. Views at 28 (citing Staff Report at Table C-1).

              The Commission considered several alternative explanations for why

domestic market share declined while subject import market share dramatically

increased during the POI. It considered, for example, that subject imports took market

share from nonsubject imports. Views at 28-29. It found, however, that “[t]he increase

in subject imports’ share of the U.S. market . . . came primarily at the direct expense of

the domestic industry rather than nonsubject imports,” noting that nonsubject imports’

market share declined from 2009 to 2011, and even by a small amount during interim

2012 when demand was peaking. Views at 28-29 (citing Staff Report at Table IV-6).

The Commission also rejected the possibility that the domestic industry’s inability to

supply the market accounted for the high levels of subject imports, observing that the

domestic industry had excess capacity that would have allowed it to fill a greater share

of demand than it did. Views at 29 (citing Staff Report at III-18, Tables III-3, III-5, III-6,

IV-2, Figs. E-1 to E-4). It concluded,

       [w]hile factors such as operational inefficiencies and the expected non-
       renewal of the PTC and other federal incentives may have played some role
       in the domestic industry’s modest growth in production and shipments
       during interim 2012, the record indicates that the subject imports also
       played a role in precluding the domestic industry from increasing production
       to take advantage of the increase in apparent consumption.

Views at 30 (citing Staff Report at III-18 n.33, VI-11; Hr’g Tr. (Cole) 81, 122-123).
Court No. 13-00104                                                                 Page 22


              The Commission thus determined that the volume and increase in volume

of subject imports was significant during the POI. Views at 30.

                      i. Tax Credit Argument

              Titan argues that the anticipated expiration of the PTC and investment tax

credit at the end of 2012 led to an anomalous surge in demand that domestic producers

were unable to accommodate. (Titan Mot. 5, 24-25, 36.) Relying on the dissenting

Commissioners’ rationale, Titan contends that, “‘[d]uring the latter half of the POI,

subject imports filled demand that was itself inflated and accelerated by the likely

expiration of the PTC and other federal incentives, but subject imports did not displace

significant amounts of domestic production or sales.’” (Titan Mot. 25.) As a result, Titan

urges that the Commission lacked substantial evidence to support its determination of a

significant volume and increase in volume of subject imports during the POI.

              However, the Commission acknowledged that the surge in demand at the

end of the POI was particularly strong because of the anticipated non-renewal of the

PTC. Views at 28. Citing substantial record evidence, it found that significant volumes

of subject imports prevented the domestic industry from taking full advantage of this

surge. Views at 28. It cited, for example, the increase in quantity of subject imports,

Views at 27 (citing Staff Report at Table IV-2), and their growing market share during

the POI, Views at 28 (citing Staff Report at Tables IV-6, C-1). The Commission also

relied on record evidence that showed subject imports’ market share increased “more

sharply” than demand between interim 2011 and interim 2012 while the domestic

industry’s market share fell to its lowest point during that timeframe. Views at 28 (citing
Court No. 13-00104                                                                Page 23

Staff Report at Table IV-6, C-1). The Commission considered and dismissed the

possibility that subject import market share grew at the expense of nonsubject imports,

finding that nonsubject imports lost a small amount of market share when subject

imports were increasing dramatically. Views at 28-29 (citing Staff Report at Table IV-6).

              These findings provide substantial evidence to support the conclusion of

significant volumes and increase in volumes of subject imports during the POI, both in

absolute terms and relative to consumption. Relying on the dissenting Commissioners’

findings, Titan argues that the Commission determination is unsupported by substantial

evidence. That Titan can point to evidence that detracts from the Commission’s

conclusion, however, does not preclude the Commission’s finding from being supported

by substantial evidence. Matsushita, 750 F.2d at 936. In fact, in light of the dissent of

three Commissioners, the court is hardly surprised that the record contains contrary

evidence. Conflicting evidence, however, is insufficient for Titan to carry the day. Id.

While the court must consider the record as a whole, when the Commission has based

its determination on substantial evidence and considered the evidence that fairly

detracts from its conclusion, the court may not displace the agency’s choice. Mitsubishi,

918 F. Supp. at 425. Titan’s arguments improperly ask the court to reweigh the record

evidence and, therefore, must be rejected. Usinor, 28 CIT at 1111, 342 F. Supp. 2d at

1272.

                     ii. Excess Capacity

              Titan and Siemens challenge the Commission finding that the domestic

industry had excess capacity during the POI as unsupported by substantial evidence.
Court No. 13-00104                                                                Page 24

(See Siemens Mot. 44-55; Titan Mot. 25-36.) They argue that the domestic industry

was unable to meet the spike in demand for wind towers, leaving purchasers with no

choice but to purchase subject imports. (See Siemens Mot. 44-55; Titan Mot. 25-36.)

In support of this argument, Titan and Siemens cite record evidence that calls into

question the domestic industry’s reported capacity. (See Siemens Mot. 44-55; Titan

Mot. 25-36.) For example, they point to record evidence that one company backed out

of orders, (Siemens Mot. 51-53), and that another company turned away orders from

domestic plants in 2010 and 2011 (Siemens Mot. 47-48). Plaintiffs also note that a third

company reported excess capacity though it told OEMs it could not accommodate

certain projects, (Siemens Mot. 55), and had not yet constructed a facility for which it

reported capacity (Titan Mot. 28-29). Similarly, Plaintiffs observe that a company

claimed capacity for a plant that lacked the staff to produce towers (Siemens Mot. 53-

54; Titan Mot. 29). Based on these examples of delayed and declined orders, Plaintiffs

argue that OEMs were forced to pay premiums for subject imports because the

domestic industry lacked actual capacity. (See Siemens Mot. 44-55; Titan Mot. 25-36.)

              Notwithstanding these claims, the Commission cited substantial record

evidence corroborating domestic producers’ reported excess capacity. It reasonably

relied on the domestic producers’ certified capacity data. See Views at 4, 29-30. This

data provided substantial evidence for the Commission’s conclusion that the domestic

industry had excess capacity during the POI.

              Further, the Commission reasonably addressed evidence that detracted

from the data upon which it relied. It acknowledged that domestic producers were not
Court No. 13-00104                                                                    Page 25


able to meet all of the growing demand, but found that OEMs elected to purchase wind

towers overseas despite available capacity among domestic producers. Views at 29

(citing Staff Report at Tables III-3, III-5, III-6, Figs. E-1 to E-4). For example, the

Commission observed that several qualified facilities operated at modest rates of

capacity utilization during interim 2012, Views at 30 n.169 (citing Staff Report at Table

III-5), and that one company built a facility that its expected customer declined to use,

Views at 30 n.170 (citing Staff Report at II-4 n.6, V-67). Additionally, the Commission

found that domestic producers had no choice but to decline certain orders because of

the contractual obligations they had undertaken through long-term supply agreements

that they believed required them to reserve certain production capacity for particular

OEM customers. See Views at 30 n.173 (citing e.g., Hr’g Tr. (Cole) 81, 122-123).

When the OEMs later renegotiated these agreements, domestic producers were left

with unused excess capacity. See id. 10 In addition, the Commission noted that some

domestic producers submitted bids for large projects for which subject imports were

used, undermining Plaintiffs’ allegations that these producers lacked capacity. Views at

41 n.234 (citing Staff Report at II-4 n.6). The Commission further determined that

concerns about the preparedness of certain domestic production were unfounded given

the two-year delivery horizon, the large number of towers involved, and the OEMs’



10 For example, one large producer, [[      ]], could not operate at capacity because it
had a long-term supply agreement with [[ ]] that [[ ]] later renegotiated in favor of
purchasing more subject imports. Views at 30 n.173 (citing e.g., Hr’g Tr. (Cole) 81, 122-
123). Meanwhile, [[ ]] lowered its prices per tower by over [[ ]] percent under this long-
term agreement. OEMs similarly renegotiated contracts with [[
       ]]. Views at 30 n.171 (citing Staff Report at III-18 n.33, V-11).
Court No. 13-00104                                                                    Page 26

decisions to qualify new facilities after production begins. Views at 30 n.170. Finally,

the Commission addressed and rejected the argument that domestic producers’

facilities were too far from the wind tower sites, noting several examples in which OEMs

relied on subject imports despite nearby domestic facilities with reported excess

capacity. 11 Views at 29-30 (citing Staff Report at Tables V-1, V-2, V-5, III-5).

              Thus, the Commission relied on substantial record evidence to conclude

that the domestic industry had excess capacity due to the significant volume and

increasing volume of subject imports. Plaintiffs have not identified any error with the

Commission’s analysis. As discussed with respect to the standard of review applied by

this court, even if Plaintiffs may point to evidence relied on by the dissenters and

inconsistent with the Commission’s conclusion, that does not preclude the

Commission’s finding from being supported by substantial evidence. Matsushita, 750

F.2d at 936; Armstrong Bros., 626 F.2d at 170 n.4. The court “may not reweigh the




11 [[   ]], for example, relied on subject imports for a Midwest project even though
Trinity had facilities with capacity in Iowa and Texas. Views at 29 (citing Staff Report at
Tables V-2, III-5). [[     ]] also opted to supply its Shephard’s Flats project entirely with
subject imports, even though [[            ]] had a nearby facility and Broadwind offered to
build a new facility to supply the project. Views at 30 (citing Staff Report at II-4 n.6, V-
67). Plaintiffs’ claims that the [[                                                     ]] is
also without merit. (See Siemens Mot. 54; Titan Mot. 29.) While Plaintiffs accurately
note that the record indicates that there were only [[
        ]] (Titan Mot. 29 (citing Staff Report at III-29 n.53)), the record also indicates that
[[
                      ]] (See Staff Report at III-29 n.53.) Consequently, there was
substantial evidence to support the Commission’s finding that this plant had excess
production capacity.
Court No. 13-00104                                                                 Page 27

evidence or substitute its own judgment for that of the agency.” Usinor, 28 CIT at 1111,

342 F. Supp. 2d at 1272.

              b. Price Effects

              When performing a price effects analysis, the ITC must consider (1)

whether there has been significant price underselling by the imported merchandise as

compared with the price of the domestic like product and (2) whether the effect of

subject imports otherwise depresses prices to a significant degree or suppresses prices

to a significant degree. 19 U.S.C. § 1677(7)(C)(ii).

              The Commission evaluated the existence of underselling, price

depression, and price suppression. It found that subject imports and the domestic like

product are generally substitutable, and compete for sales to OEMs. Views at 31 (citing

Staff Report at II-19, II-31 to II-32). It also noted that most OEMs ranked total cost, of

which f.o.b. prices are the largest component, as the most important factor in

purchasing decisions. Views at 31 (citing Staff Report at Tables V-1, V-5). Further, the

Commission observed that OEM pricing data indicated that subject imports generally

had lower f.o.b. prices than domestic towers, but that domestic towers were less

expensive on a delivered basis. Views at 32 (citing Staff Report at Table V-1; Hr’g Tr.

(Dougan) 156-157). Thus, the Commission found that subject imports were not

significantly underselling domestic products on a delivered basis. Views at 32-33. The

Commission likewise found that the subject imports did not have price depressing

effects on the domestic industry, concluding that unit value was an unreliable metric for
Court No. 13-00104                                                                      Page 28


evaluating price depression in this case because the size of wind towers increased as

sale values increased over the period of investigation. Views at 33.

              However, the Commission found substantial record evidence of price

suppression because the domestic industry’s ratio of cost of goods sold to net merchant

market sales (“COGS ratio”) increased significantly during the POI. Views at 34 (citing

Staff Report at Table VI-1). 12 The Commission observed that the rising COGS ratio

coincided with the increasing volume of subject imports during 2011 and interim 2012.

Views at 34-35. It found this trend to be discordant with the price increases it would

have expected given the inelastic nature of the wind tower market and the spiking

demand during the period. Views at 35.

              The Commission attributed the domestic industry’s unexpected cost-price

squeeze to evidence that OEMs negotiated based on f.o.b. prices. Views at 33-34

(citing Pet’r’s Post-Hr’g Br., Ex. 2; Hr’g Tr. (Cole) 31-32; Hr’g Tr. (Smith) 37). It

reasoned,

       There have also been instances where the OEMs have pressured the
       domestic producers to renegotiate their supply agreements to set lower
       prices or alter volumes in light of the availability of low-priced subject
       imports. The small number of OEMs in the market, the importance to
       them of price in purchasing decisions, their pattern of negotiating prices
       with domestic producers, and the availability of alternative sources of
       supply in the market (the most prominent of which during the latter portion
       of the period of investigation was subject imports), placed pressure on
       domestic producers to discipline their prices in order to receive bid
       solicitations or orders.



12The domestic industry’s COGS ratio increased from [[ ]] percent in 2009 to [[        ]]
percent in 2010 to [[    ]] percent in 2011. Views at 34 (citing Staff Report at Table VI-
1). In interim 2011, this ratio was [[   ]] percent, and in 2012 it was [[   ]]. Id.
Court No. 13-00104                                                                  Page 29



Views at 34 (citing Staff Report at II-23, III-11, III-12, VI-17 n.28). Thus, the

Commission concluded that subject imports prevented the domestic industry from

raising prices during the POI, resulting in significant adverse price effects on the

industry. Views at 35.

                      i. Price Suppression

              Siemens challenges the Commission’s determination of adverse price

effects as unsupported by substantial evidence because the Commission found no

evidence of significant price underselling, price depressing effects by subject imports, or

confirmed lost sales. (Siemens Mot. 43-44.) It further argues that the Commission’s

price suppression determination is inconsistent with the finding that subject imports cost

more on a delivered basis. (Siemens Mot. 44.)

              However, the Commission did not need to find underselling, price

depression, or lost sales 13 to determine that the subject imports adversely affected the

domestic industry by suppressing prices. Cemex, S.A. v. United States, 16 CIT 251,

260-61, 790 F. Supp. 290, 299 (1992) (“To require findings of underselling would be

inconsistent with the proposition that price suppression or depression is sufficient.”),

aff’d, 989 F.2d 1202 (Fed. Cir. 1993). Likewise, higher priced subject imports are not

inconsistent with price suppression. Maine Potato Council v. United States, 9 CIT 293,

301-02, 613 F. Supp. 1237, 1245 (1985) (holding that higher quality imports may have



13The Commission acknowledged the absence of confirmed lost sales, but pointed out
that it viewed the [[             ]] as a sales opportunity that was lost during the
demand boom in interim 2012. Views at 33 n.190, 41 (citing Staff Report at II-4 n.6).
Court No. 13-00104                                                               Page 30

price suppressing effects notwithstanding their higher price); Allegheny Ludlum Corp. v.

United States, 24 CIT 858, 880-81, 116 F. Supp. 2d 1276, 1298-99 (2000) (postulating

that higher, though declining prices for subject imports could have depressed prices).

Indeed, the Commission explained that, in this case, subject imports suppressed prices

because OEMs negotiated with domestic producers to lower their f.o.b. prices, which

were higher than those of subject imports. Views at 34 (citing Pet’r’s Post-Hr’g Br., Ex.

2; Hr’g Tr. (Cole) 31-32; Hr’g Tr. (Smith) 37).

              The Commission reasonably found that subject imports suppressed

domestic prices and Plaintiffs have not demonstrated any error in the Commission’s

assessment of the facts. The Commission’s determination regarding the subject

imports’ price suppressing effects on the domestic industry is supported by substantial

evidence. Thus, the court may not reweigh the record evidence or otherwise second-

guess the Commission’s reasonable explanation. See Usinor, 28 CIT at 1111, 342 F.

Supp. 2d at 1272.

                      ii. COGS Ratio

              Titan challenges the Commission’s methodology for finding price

suppression. It argues that the Commission failed to show a causal link between the

subject imports and the domestic industry’s rising COGS ratio. (Titan Mot. 42-43.)

Specifically, Titan contends that the COGS ratio cannot reliably show that subject

imports suppressed domestic prices because the COGS ratio does not correlate with
Court No. 13-00104                                                                  Page 31


the domestic industry’s net sales on a year-to-year basis. (Titan Mot. 42.) 14 Titan

asserts that the lack of year-to-year correlation between subject import market share,

domestic industry market share, and the COGS ratio disrupts the causal link between

subject imports and any price suppressing effects the domestic industry may have

experienced. (Titan Mot. 42.) Titan postulates that operational inefficiencies prevented

the domestic industry from raising prices during this period rather than subject imports.

(See Titan Mot. 46; see also Siemens Mot. 35-37, 58.)

              However, the Commission reasonably relied on the rising COGS ratio as

evidence of price suppression. See, e.g., Nippon Steel, 458 F.3d at 1354 n.4 (“When

cost of goods sold (‘COGS’) exceeds price, the producer is unable to sell the product for

more than what it costs to produce the product; if the producer is unable to raise prices,

the industry finds itself in what is referred to as a cost-price squeeze.”); Chlorinated

Isocyanurates from China and Spain, Inv. Nos. 731-TA-1082-1083 (Final), USITC Pub.

3782 (June 2005) at 30 (finding that rises in unit COGS and in ratio of COGS to net

sales indicates cost-price squeeze). Indeed, the Commission articulated a sufficient

causal link between the subject imports and the domestic industry’s rising COGS ratio.

It focused on the trend of volume increases and elevated COGS ratios in 2011 and

interim 2012, not across the entire POI. Views at 35-36. The Commission observed



14For example, Titan notes that between 2009 and 2010, subject import market share
decreased while domestic COGS increased by [[ ]] points. (Titan Mot. 42 (citing Staff
Report at Tables C-1 and C-2).) And, between 2009 and 2011, domestic market share
increased while COGS increased. (Titan Mot. 42 (citing Staff Report at Tables C-1 and
C-2).) Further, during interim 2011 and interim 2012, domestic market share decreased
while COGS decreased. (Titan Mot. 42 (citing Staff Report at Tables C-1 and C-2).)
Court No. 13-00104                                                                    Page 32


that the COGS ratio increased from 2009 to 2011, remaining very high in interim 2012.

Views at 34 (citing Staff Report at Table VI-1). The Commission found that the high

COGS ratio in 2011 and interim 2012 coincided with dramatic increases in subject

import volumes. Views at 34-35 (citing Staff Report at Table VI-1). There is no support

for Titan’s argument that there must be a perfect correlation between subject imports

and COGS on a yearly basis. The Commission may reasonably rely on the trend of

volume increases and elevated COGS ratios as it did here.

              Furthermore, the Commission reasoned that the domestic industry should

have been able to raise prices during 2011 and interim 2012 given the spike in demand,

but found it could not because of competition with subject imports. Views at 34-35

(citing Staff Report at Table V-2). The Commission acknowledged that operational

inefficiencies contributed to the domestic industry’s inability to raise costs, but

concluded that these issues did not account for the entirety of the cost-price squeeze.

Views at 34-35. 15 Rather, the Commission found that market conditions, such as the

small number of OEMs, the importance of price in purchasing decisions, negotiations

based on f.o.b. pricing, and the availability of subject imports, “placed pressure on

domestic producers to discipline their prices in order to receive bid solicitations or

orders.” Views at 34. It determined that the changes in the COGS ratio reflected this

price suppressive effect. Views at 34-35.



15 Moreover, the Commission found that at least some of these inefficiencies resulted
from OEM customers pressuring domestic producers to change production designs to
accommodate their shift to subject imports for designs previously supplied by the
domestic producer Views at 34 n.195 (citing Staff Report at VI-17 n.28).
Court No. 13-00104                                                                    Page 33


              The Commission examined the relevant data and articulated a reasonable

explanation. To that end, the Commission established a sufficient causal link between

the subject imports and the domestic industry’s rising COGS ratio. Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Uruguay

Round Agreements Act, Statement of Administrative Action, H.R. Rep. No. 103–316, at

156 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4184–85 (“SAA”) (stating that the

Commission “need not isolate the injury caused by other factors from injury caused 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”). Plaintiffs’ ability to

point to evidence that detracts from the Commission’s findings, evidence that was

examined and discounted by the Commission, does not provide a justification for this

court to reweigh the evidence that was before the Commission. Usinor, 28 CIT at 1111,

342 F. Supp. 2d at 1272 (2004); see also Matsushita, 750 F.2d at 936.

                      iii. F.O.B. and Delivered Costs Argument

              Plaintiffs next argue that the Commission lacked substantial evidence to

support its determination that OEMs negotiated with domestic producers based on f.o.b.

prices, thereby preventing price increases. (Siemens Mot. 43; Titan Mot. 38-41.) They

argue that delivered costs were more important to OEMs than f.o.b prices, and that

domestic wind towers were less expensive on that basis. (Titan Mot. 41.) Titan further

observed that domestic producers could not have known about the f.o.b. prices quoted

by their subject import competitors because OEM price negotiations were closed. (Titan

Mot. 40-41.) Titan urges that the fact that OEMs attempted to reduce prices through
Court No. 13-00104                                                                    Page 34


negotiations does not constitute the requisite causal link between subject imports and

domestic prices. (Titan Mot. 41.) Moreover, Siemens argues that the Commission

based its assessment of OEM negotiation patterns entirely on a misreading of a single

email. (Siemens Mot. 43.)

               Contrary to Plaintiffs’ contentions, the Commission relied on substantial

evidence to determine that subject imports’ lower f.o.b. prices gave OEMs leverage in

negotiating with domestic producers, thereby suppressing domestic prices. The

Commission acknowledged that subject imports were more expensive on a delivered

basis, Views at 32-33 (citing Staff Report at V-1, V-2, V-6), but cited record evidence

that f.o.b. price was the biggest component of total cost and that OEMs negotiated

based on those prices. Views at 33-34 (citing Pet’r’s Post-Hr’g Br., Ex. 2; Hr’g Tr. (Cole)

31-32; Hr’g Tr. (Smith) 37). These negotiations pressured domestic producers to lower

prices to compete with subject imports. Id. Though bids were closed, the Commission

cited hearing testimony that OEMs leveraged quotes from other producers to drive f.o.b.

prices down. Id. Further, the Commission found that OEMs pressured domestic

producers to renegotiate supply agreements to set lower prices or alter volumes based

on lower priced subject imports. Views at 34 (citing Staff Report at II-23, III-11, III-12). 16




16   For example, the Commission found that [[


                                                                                  ]]
Views at 34 n.195 (citing Staff Report at V-17 n.28). It also found that [[ ]] awarded
bids to subject import producers over [[                       ]] even though these
Court No. 13-00104                                                                   Page 35


Thus, the Commission examined the relevant data and articulated a reasonable

explanation for its determination that was supported by substantial evidence. See

Motor Vehicle Mfrs., 463 U.S. at 43.

              c. Adverse Impact

              In examining the impact of subject imports, the Commission “shall

evaluate all relevant economic factors which have a bearing on the state of the

industry,” including output, sales, inventories, ability to raise capital, research and

development, and factors affecting domestic prices. 19 U.S.C. § 1677(7)(C)(iii). No

single factor is dispositive, and all are considered “within the context of the business

cycle and conditions of competition that are distinctive to the affected industry.” Id.

              The Commission found that subject imports adversely affected the

domestic industry during the POI based on these factors and considerations. Views at

36. It determined that “the domestic industry was unable to benefit from the sharp

increase in apparent U.S. consumption before the PTC was expected to expire” and

“experienced a decline in market share and only a modest increase in production and

U.S. shipments” as a result of significant volumes of subject imports during the POI, and

especially in interim 2012. Views at 36. The Commission further observed that the

domestic industry was unable to raise prices because of the presence of subject imports

and pressure by OEMs to lower f.o.b. prices to better compete with subject imports.




domestic producers could have had new plants ready to produce towers within the two-
year delivery timeframe. See Views at 30, 30 n.170 (citing Staff Report at II-4 n.6, V-
67).
Court No. 13-00104                                                                 Page 36

Views at 36. As a result, the domestic industry was unable to cover increased costs,

causing steep declines in operating income and resources available for capital

expenditures. Views at 36. The Commission evaluated whether other factors – non-

subject imports, operational inefficiencies, and the geographic location of projects – may

have harmed the industry during the POI, but found that these other factors accounted

for only a part of the adverse impact the domestic industry experienced. See Views at

40-41. The Commission concluded that the “record contains ample evidence that the

presence of the subject imports led to reduced production levels, shipments, capacity

utilization and price increases for the domestic industry as the OEMs turned to subject

imports rather than rely upon the domestic producers who had nearby unused capacity.”

Views at 42.

                      i. Excess Capacity

               Plaintiffs challenge the Commission’s adverse impact finding on the basis

that the industry did not have excess capacity and actually gained market share

throughout the POI. (See Siemens Mot. 44-55; Titan Mot. 25-36.) In particular,

Plaintiffs argue that data showing excess capacity did not reflect actual market

conditions, noting that OEMs paid a premium for subject imports and that U.S.

producers refused and canceled orders throughout the period. (See Siemens Mot. 44-

55; Titan Mot. 25-36.)

               As discussed previously in reviewing the Commission’s volume and price

effects analysis, Plaintiffs’ arguments that the domestic industry lacked excess capacity

cannot withstand the standard of review. The Commission relied on substantial record
Court No. 13-00104                                                                   Page 37


evidence from the domestic industry’s certified questionnaire responses to support its

finding of excess capacity. Views at 40 (citing Staff Report at Tables III-5, III-6). It also

had substantial evidence to support its determination that subject imports suppressed

domestic industry prices because OEMs used subject imports’ lower f.o.b. prices as

leverage in negotiations with domestic producers. Views at 33-34, 36 (citing Pet’r’s

Post-Hr’g Br., Ex. 2; Hr’g Tr. (Cole) 31-32; Hr’g Tr. (Smith) 37). The Commission cited

record evidence that domestic producers refused and canceled orders because of long-

term supply agreements with OEMs that tied up their production. These domestic

producers were then left with excess capacity when the OEMs subsequently

renegotiated downward the quantity of wind towers they would purchase from the

domestic producers and increased their purchases of subject imports. See Views at 30

n.171, n.173 (citing Hr’g Tr. (Cole) 81, 122-123; Staff Report at III-18 n.3, V-11). The

Commission thus had substantial evidence to support its Views. Plaintiffs have not

identified any error in the Commission’s analysis and, instead, simply disagree with the

outcome of that analysis. The court may not reweigh the evidence, as Plaintiffs

request. Usinor, 28 CIT at 1111, 342 F. Supp. 2d at 1272.

                      ii. Market Share
              Plaintiffs argue that the Commission lacked substantial evidence to

support its determination that the domestic industry’s market share declined as a result

of increased subject imports. Titan argues that subject imports could not have

adversely affected the domestic industry given that domestic producers gained market

share throughout the POI. (Titan Mot. 46.) Siemens urges that the Commission should
Court No. 13-00104                                                                Page 38


have viewed any loss in market share in the context of overall expansion of demand

that saturated domestic production capacity, such that “any further growth necessarily

meant a decline in domestic market share with no implications for the domestic

industry’s prosperity.” (Siemens Mot. 41-42.)

              The Commission acknowledged that domestic market share grew

throughout most of the POI, but found that the domestic industry lost market share

during interim 2012, when demand was spiking. Views at 37-38. As previously

discussed, the Commission also found that the domestic industry had excess capacity

during this period, indicating that growth in market share did not have to go to subject

imports, as Siemens contends. Views at 40. The Commission reasonably found that

the domestic industry’s market share declined as a result of increased subject imports.

Because the Commission’s determination is supported by substantial evidence, the

court may not reweigh the record evidence by second-guessing the Commission’s

reasonable explanation. See Usinor, 28 CIT at 1111, 342 F. Supp. 2d at 1272.

                     iii.   Non-Subject Imports

              Siemens also challenges the Commission’s finding of adverse impact by

revisiting the contention that the Commission insufficiently analyzed the role of non-

subject imports in domestic market trends. (Siemens Mot. 59.)

              As addressed earlier, the Commission considered the role of non-subject

imports and found that they did not have an adverse impact on the domestic market

during the POI. The Commission determined that “nonsubject imports lost market share

throughout the period of investigation” and “[a]t the same time that subject imports were
Court No. 13-00104                                                                    Page 39

generally increasing, nonsubject imports’ share of the market was declining.” Views at

23, 28 (citing Staff Report at Tables IV-2, IV-6; Tr (Revak) 226). Based on this record

evidence, the Commission concluded that non-subject imports could not have caused

the adverse impact that the domestic industry experienced during the POI. The

Commission instead decided that the “increase in subject imports in interim 2012

relative to interim 2011 came almost entirely at the expense of the domestic industry,

while nonsubject imports remained a minor factor in the growing U.S. market.” Views at

40 (citing Staff Report at Table C-2). Because the Commission relied on substantial

record evidence to support its conclusion about the role of non-subject imports, the

court may not reweigh the record evidence. Usinor, 28 CIT at 1111, 342 F. Supp. 2d at

1272.

        III.   The Threat of Material Injury Determination

               In determining whether a domestic industry is threatened with material

injury by reason of subject imports, the Tariff Act requires the ITC to consider, “among

other relevant economic factors,” (i) the nature of any countervailable subsidy; (ii) any

existing unused production capacity or imminent, substantial increase in production

capacity in the exporting country, taking into account the availability of other export

markets to absorb any additional exports; (iii) a significant rate of increase of the

volume or market penetration of the subject merchandise; (iv) the likely price effects of

the subject imports; (v) inventories of the subject imports; (vi) the potential for product-

shifting in facilities currently being used to produce other products; (vii) if the

investigation involves raw agricultural products, any product processed from such
Court No. 13-00104                                                                  Page 40


products; (viii) the actual and potential negative effects on the existing development and

production efforts of the domestic industry; and (ix) any other adverse trends that

indicate that material injury by reason of subject imports is likely. 19 U.S.C.

§ 1677(7)(F)(i). Though the presence or absence of any factor is not decisive, “a

determination may not be made on the basis of mere conjecture or supposition.” See

19 U.S.C. § 1677(7)(F)(ii). 17

                In his Views, Commissioner Pinkert weighed the relevant statutory factors

and determined that wind tower imports from China and Vietnam posed a threat of

material injury to the domestic industry. See generally Pinkert Views. Focusing on

market conditions at the end of the POI, he found that the domestic industry was

vulnerable to material injury in the imminent future because foreign producers had, inter

alia, significantly increased volumes and market share; significantly and rapidly

expanded their presence throughout the U.S. market, even in regions where they did

not traditionally compete; generated substantial excess capacity that could quickly be

directed at the U.S. market; and accumulated significant inventories. Pinkert Views at

3-6. Commissioner Pinkert further observed that the price differential between the



17   19 U.S.C. § 1677(7)(F)(ii) states:

         The Commission shall consider the factors set forth in clause (i) as a whole
         in making a determination of whether further dumped or subsidized imports
         are imminent and whether material injury by reason of imports would occur
         unless an order is issued or a suspension agreement is accepted under this
         subtitle. The presence or absence of any factor which the Commission is
         required to consider under clause (i) shall not necessarily give decisive
         guidance with respect to the determination. Such a determination may not
         be made on the basis of mere conjecture or supposition.
Court No. 13-00104                                                                 Page 41


domestic product and subject imports narrowed during this timeframe and that demand

for wind towers in the foreseeable future was expected to moderate from the 2012 high.

Pinkert Views at 6-7. In this context, he determined that subject import volumes will

likely be significant in the imminent future, leading to increased price competition with

the domestic industry. Pinkert Views at 7-8. He concluded:

       Limited sales opportunities in a less than robust market will intensify price
       competition between subject imports and domestic producers, and even a
       modest volume of subject imports would be likely to result in negative
       effects on the domestic industry. As a consequence, in the absence of
       trade relief, the industry is likely in the imminent future to suffer a
       significant loss of revenues that will cause a further deterioration in its
       financial condition, as well as declining employment, output, and
       productivity.
Pinkert Views at 8.

              Plaintiffs challenge Commissioner Pinkert’s determination, arguing that he

lacked substantial evidence to support a finding that injury to the domestic market was

“imminent”; improperly extrapolated conditions from interim 2012 in finding imminent

threat; and lacked substantial evidence to support the statutory factors that he found

indicated an imminent threat of material injury to the domestic market. (See generally

Siemens Mot.; Titan Mot.) Thus, they argue that his findings, as a whole, rest on

speculation and conjecture. (See generally Siemens Mot.; Titan Mot.)

              a. “Imminent” Material Injury

              In his Views, Commissioner Pinkert found that the termination of the PTC

and the investment tax credit in 2012, and their one-year renewal for 2013, would cause

demand to moderate in the near future. He reasoned:
Court No. 13-00104                                                                  Page 42


       [I]t should take a much smaller volume of subject imports to constitute a
       significant share of the market than it took during the period of heightened
       demand in 2011 and 2012 leading up to the then-expected end of the PTC
       and [investment tax credit]. Given moderate demand, subject producers
       are likely to compete intensely for U.S. sales in order to better utilize their
       available capacity. Consequently, for the above reasons, I find that, in the
       absence of trade relief, imports of the subject merchandise in the
       imminent future are likely to be significant and to increase significantly,
       both in absolute terms and relative to consumption, over the low-to-
       nonexistent levels to which they fell as a result of expectations that the
       PTC and [investment tax credit] would not be renewed.
Pinkert Views at 6 (citing Staff Report at II-10, Table VII-9). He further indicated that

such increased volumes of subject imports were imminent because “it would likely take

six to nine months for purchasers to respond to the renewal of the PTC with new

orders.” Pinkert Views at 6-7 n.27 (citing Hr’g Tr. (Smith) 80).

              Siemens urges that the harm Commissioner Pinkert predicted could not

occur imminently because a year or more would pass between planning projects in

response to the renewed tax credits and delivery of towers. (Siemens Mot. 25-26.) It

argues that this timeframe is at odds with the dictionary definition of “imminent” as

meaning “about to happen.” (Siemens Mot. 25-26 (citing Oxford Concise Dictionary (2d

ed. 1989).)

              Commissioner Pinkert’s determination was supported by substantial

evidence and in accordance with law. A six to nine month timeframe is sufficiently

imminent to support a threat determination. Although “[n]o bright-line test exists to

determine when injury is imminent”, this court has found timeframes longer than “six to

nine months” to be “imminent.” Asociacion de Productores de Salmon y Trucha de

Chile A.G. v. USITC, 26 CIT 29, 39, 180 F. Supp. 2d 1360, 1371 (2002) (rejecting
Court No. 13-00104                                                                Page 43

arguments that imminent “cannot mean within one to two years”); accord Goss Graphics

System, Inc. v. United States, 22 CIT 983, 1007-08, 33 F. Supp. 2d 1082, 1103-04

(1998) (upholding as reasonable finding that harm was imminent where it would

manifest in two or more years); see also Co-Steel Raritan, Inc. v. USITC, 29 CIT 562,

570-71 (2005). Further Commissioner Pinkert cited hearing testimony to support his

finding that competition with subject imports would increase within a “six to nine month”

timeframe. Pinkert Views at 6-7 n.27 (citing Hr’g Tr. (Smith) at 80). That Plaintiffs can

point to record evidence that supports a different timeframe is of no moment. See

Matsushita, 750 F.2d at 936.

              b. Tax Credit Renewal

              Plaintiffs also argue that Commissioner Pinkert improperly speculated that

significant subject import volumes during interim 2012 represented a trend, urging that

2012 was actually a unique year during which domestic producers could not satisfy

demand. (Siemens Mot. 27-29, 34-35; Titan Mot. 48-49.) Plaintiffs contend that the

looming expiration of the PTC and investment tax credit drove 2012’s spike in demand,

(Siemens Mot. 27-29, 34-35; Titan Mot. 48-49), and that Commissioner Pinkert

wrongfully assumed that the renewal of these tax credits would lead to continued high

demand. (Siemens Mot. 17-18, 27-29, 34-35; Titan Mot. 48-49.) They assert that the

renewal could not produce the same level of demand as existed in interim 2012

because the tax credits’ terms changed for 2013. (Siemens Mot. 17-18, 27-29, 34-35;

Titan Mot. 48-49.) In contrast to the 2012 tax credits, the 2013 tax credits required that

projects be commenced, not that orders be placed, by the end of the year to qualify.
Court No. 13-00104                                                                 Page 44


(Siemens Mot. 17-18, 27-29, 34-35; Titan Mot. 48-49.) Therefore, Plaintiffs assert that

projects commenced in 2013 “[m]ight never be finished, depending upon the economic

circumstances and prospects for grid parity.” (Siemens Mot. 29.) Plaintiffs thus

contend that Commissioner Pinkert’s determination about demand trends in the

imminent future was inherently speculative and conjectural. (See Siemens Mot. 29.)

              Commissioner Pinkert used an accepted methodology and relied on

substantial evidence to support his determination that the renewal of the tax credits

would spur further demand. The court has repeatedly upheld reliance on trends as

constituting substantial evidence in support of a threat of material injury determination.

See Asociacion de Productores, 26 CIT at 38, 180 F. Supp. 2d at 1370 (holding that

trend data showing imminent increase in import volumes constituted substantial

evidence to support Commission’s threat finding); see also Bando Chem. Indus., Ltd. v.

United States, 17 CIT 798, 807 (1993), aff’d, 26 F.3d 139 (Fed. Cir. 1994) (finding that

the Commission reasonably inferred from trend data that increased foreign production

was likely destined for U.S. market). Commissioner Pinkert thus reasonably relied on

substantial record evidence of trends showing, inter alia, increased volumes, market

share, and excess capacity among foreign producers as evidence of a threat of

imminent material injury to the domestic industry.

              c. Factors for Finding Threat of Material Injury

              Finally, Plaintiffs challenge Commissioner Pinkert’s weighing of the

statutory factors for examining whether there is a threat of material injury. (Siemens

Mot. 39-42; Titan Mot. 48-52.) They argue that no substantial evidence supports
Court No. 13-00104                                                                 Page 45


Commissioner Pinkert’s findings that (i) the surge in subject import volume would

continue after interim 2012; (ii) subject imports had an expanding presence in the U.S.

market; (iii) foreign producers had excess capacity; (iv) foreign producers had significant

end-of-year inventories poised for the U.S. market; and (v) subject imports would have

future price effects on the domestic industry.

                      i. Volume After Interim 2012
              With respect to Plaintiffs’ argument that the interim 2012 surge in volume

was an anomaly, as discussed previously, Commissioner Pinkert reasonably relied on

the trend in subject import volumes at the end of the POI in assessing whether a threat

of material injury existed to the domestic market. See Asociacion de Productores, 26

CIT at 38, 180 F. Supp. 2d at 1370; Bando Chem., 17 CIT at 807. In particular,

Commissioner Pinkert identified substantial evidence to support his determination that

subject import volumes were trending upward. 18 He noted that most of this surge

occurred late in the period of investigation and came at the expense of the domestic

industry. Pinkert Views at 3-4 (citing Staff Report at Table C-1). He also addressed the

absence of future orders, explaining that record data was compiled before the renewal

of the tax credits and that purchasers would have been reluctant to place orders until

after that situation had been clarified. Pinkert Views at 6-7 n.27 (citing Hr’g Tr. (Smith)

80). He reasoned that, with the renewal of the PTC and investment tax credit for




18Commissioner Pinkert observed that shipments of subject imports were [[          ]]
percent higher in interim 2012 than in interim 2011. Pinkert Views at 3-4 (citing Staff
Report at Table C-1).
Court No. 13-00104                                                                   Page 46


construction projects beginning in 2013, “purchasers are necessarily compelled to act

quickly to place orders, likely resulting in intense competition for the reduced volume of

sales and likely negatively impacting domestic producers in the imminent time frame.”

Pinkert’s Views at 6-7 n.27 (citing Hr’g Tr. (Smith) 80).

              While Plaintiffs have a point that the situation in 2013 will differ from that in

2012 with the changes in the two tax credits, Commissioner Pinkert had to make a

determination on the basis of the record that was before him. While discussing the

future is inherently uncertain, Commissioner Pinkert tied his findings with regard to the

future to the facts of record as they existed at the time he was making his determination.

On that basis, Commissioner Pinkert relied on substantial record evidence in finding

that subject import volumes would remain high in the imminent future.

                      ii. Expanding Presence

              In weighing the statutory factors for threat of material injury, Commissioner

Pinkert reasoned,

       There is no reason to believe that the subject exporters, having expanded
       their presence in the U.S. market so significantly, beginning in 2011 and
       accelerating in 2012, including in the central region of the country where
       they might be expected not to be fully competitive due to transportation
       costs and logistical difficulties, would, in the absence of trade relief,
       relinquish it by not competing in the imminent future to their fullest abilities
       in all regions of the U.S. market.
Pinkert Views at 4. Plaintiffs contend that Commissioner Pinkert lacked substantial

evidence to support this conclusion. (Siemens Mot. 38; Titan Mot. 49.) They argue that

OEMs had no choice but to rely on subject imports because domestic producers

routinely defaulted and rejected orders. (Siemens Mot. 38; Titan Mot. 49.) With less
Court No. 13-00104                                                                     Page 47


demand after interim 2012, they urge, OEMs are likely to return to their preferred

practice of sourcing from domestic producers. (Titan Mot. 49.)

              Contrary to Plaintiffs’ contentions, Commissioner Pinkert reasonably found

substantial record evidence that subject imports had an expanding presence in the U.S.

market. He noted that purchases and installations of subject imports increased

significantly at the end of the POI, even in regions where Plaintiffs argue subject imports

do not compete with domestic wind towers. Pinkert Views at 4 (citing Siemens Post-

Hr’g Br. at 1, 8-10; Foreign Resp’ts Final Comments, at 11-12 & n.43; Staff Report at

Tables V-1, V-5). 19 Moreover, as previously discussed, Commissioner Pinkert identified

record evidence indicating that the domestic industry’s operational inefficiencies could

not account for the full surge in subject import volume at the end of the POI, and that

OEMs caused these inefficiencies in some cases by renegotiating contracts in favor of

purchasing more subject imports. Thus, Commissioner Pinkert based his finding of

expanding presence of subject imports at the end of the POI on substantial evidence.

                       iii.Excess Capacity

              As part of his threat determination, Commissioner Pinkert found that “the

Chinese and Vietnamese industries have significant unused capacity for the production

of wind towers that they can use to export to the United States in the imminent future.”



19 For example, he found that subject imports sold in Midwestern states grew
substantially over prior years to [[       ]] units in all of 2011 and then surged to [[    ]]
units in the first six months of 2012. Similarly, he found that the number of subject
imports sales in the region consisting of Texas, Oklahoma, New Mexico, and Arizona
grew from [[       ]] units in all of 2010 to [[     ]] units during interim 2012. Pinkert Views
at 4 (citing Staff Report at Tables V-1, V-5).
Court No. 13-00104                                                                  Page 48

Pinkert Views at 5 (citing Staff Report at Table VII-6; Pet’r’s Post-Conf. Br. at Ex. 2). He

based this finding on data from foreign producers showing significantly increased

capacity between 2009 and 2012 and no projection that this capacity would fall in 2013.

Pinkert Views at 4-5 (citing Staff Report at Table VII-6).

              Titan argues that Commissioner Pinkert lacked substantial evidence to

support this determination. (Titan Mot. 50.) It asserts that foreign producers reported

theoretical data on capacity when they were actually already operating at full capacity.

(Titan Mot. 50.) It further contends that foreign producers with capacity cannot ship in

the absence of orders, and that OEMs prefer to purchase from domestic producers.

(Titan Mot. 50.)

              Commissioner Pinkert cited certified data from Chinese and Vietnamese

producers about their capacity to support his conclusion. See Pinkert Views at 4-5

(citing Staff Report at Table VII-6). This data constituted substantial evidence that

foreign producers had increased their capacity in recent years; that their capacity

utilization was falling across the period; and that, as a result, they had significant excess

capacity that they could use to export additional volumes of subject imports to the

United States. See Pinkert Views at 5 (citing Staff Report at Table VII-6). Although

Titan argues that the data relied upon was reported on a theoretical basis, it has failed

to support this contention with record evidence. In fact, Titan merely cites to the general

questionnaire responses of the foreign producers without any further support for its

theory that the data is theoretical. (Titan Mot. 50.) Thus, Titan has not established that
Court No. 13-00104                                                               Page 49


Commissioner Pinkert’s findings on excess capacity were unreasonable or unsupported

by substantial evidence.

                     iv.End-of-Year Inventories

             Commissioner Pinkert also found that foreign producers had significant

end-of-year inventories poised for the U.S. market. Plaintiffs argue that this conclusion

is not supported by substantial evidence. (Siemens Mot. 30, 34-36, 40; Titan Mot. 50-

51.) They explain that foreign producers inaccurately reported as “inventory” “made to

order” towers that had already been sold. (Siemens Mot. 30, 34-36, 40; Titan Mot. 50-

51.)

             Commissioner Pinkert considered the made-to-order nature of wind

towers but also noted that they are not necessarily custom-made. Pinkert Views at 5-6

n.23 (citing Staff Report at Tables VII-2, VII-4, VII-8). Moreover, the record showed that

at least on one occasion, a foreign producer used subject towers in its inventory that

were made-to-order for one project for a different project. (See Staff Report at V-48.)

Thus, Commissioner Pinkert’s consideration of the subject producers’ end-of-period

inventories was reasonable and the existence of contradictory record evidence does not

indicate that Commissioner Pinkert’s determination was not supported by substantial

evidence. See Armstrong Bros., 626 F.2d at 170 n.4. Further, the statutory factors for

assessing threat of material injury must be considered “as a whole,” such that even if

there were a weakness in the analysis of any one factor, it does not impeach the overall

determination. See 19 U.S.C. § 1677(7)(F)(ii).
Court No. 13-00104                                                                 Page 50


                      v. Price Effects

              Commissioner Pinkert found that the price gap between subject imports

and domestic products narrowed at the end of the POI and he anticipated that prices of

subject imports would continue to fall as demand moderated in 2013. Pinkert Views at

7 (citing Staff Report at Tables V-2, V-6). He reasoned that competition would intensify,

pushing down prices and adversely affecting an already vulnerable domestic industry.

Id.

              Plaintiffs assert that this finding is speculative because OEMs likely would

return to their preferred practice of purchasing from domestic producers to obtain their

base load requirements if demand moderated and domestic producers could meet such

demand. (Titan Mot. 52.) They also argue that Commissioner Pinkert’s finding of a

narrowing price gap lacks substantial evidentiary support because the record shows

that import prices were consistently higher than domestic prices on a delivered basis.

(Siemens Mot. 39; Titan Mot. 51.) Siemens further contends that Commissioner

Pinkert’s finding of future price suppression is contrary to law because the Tariff Act

requires that price suppression be found in the present. (Siemens Mot. 40 (citing 19

U.S.C. § 1677(7)(F)(iv) (“[Subject imports] are entering at prices that are likely to have a

significant depressing or suppressing effect on domestic prices, and are likely to

increase demand for further imports.”)

              Commissioner Pinkert reasonably found evidence of future price effects.

He observed that the domestic industry’s operating income margin declined from 2009

to 2011 and [[                ]] in interim 2012, even as U.S. consumption of wind
Court No. 13-00104                                                                      Page 51


towers peaked. 20 Further, Commissioner Pinkert cited record evidence that the gap in

prices between subject imports and the domestic like product fell from 2009 to interim

2012. 21 He reasoned that, in the context of increased subject imports and moderate

demand growth, subject import producers would further lower prices, exerting additional

downward pressures on domestic prices. Pinkert Views at 8. Commissioner Pinkert

noted that several domestic producers had already shuttered plants or switched to other

products in interim 2012. Pinkert Views at 8 (citing Staff Report at III-1 to III-2).

              Commissioner Pinkert thus concluded that subject imports were likely to

have negative price effects on the domestic industry. Contrary to Plaintiffs’ contentions,

Commissioner Pinkert reasonably extrapolated future price effects from these end-of-

POI trends. See, e.g., Goss, 22 CIT at 1002-03, 33 F. Supp. 2d at 1099-1100 (affirming

Commission determination that small number of sales likely to be awarded in imminent

future would “likely result in intense competition among domestic and foreign suppliers

for bid awards. Moreover, this intensified competition for a smaller pool of sales

opportunities increases the incentive for suppliers of [subject] imports to compete on the

basis of price.”). Because Commissioner Pinkert supported his trend findings with

substantial evidence, the court will not reweigh the evidence or substitute its judgment

for the Commissioner’s. Usinor, 28 CIT at 1111, 342 F. Supp. 2d at 1272.



20 Specifically, the domestic industry’s operating income margin fell from [[ ]] percent
in 2009, to only [[    ]] percent in 2011 and to [[                  ]] in interim 2012.
Pinkert Views at 8 (citing Staff Report at Tables C-1, C-2).
21 In particular, Commissioner Pinkert found that the price gap shrunk from 28 percent in

2009-2011 to 11.2 percent in interim 2012. Pinkert Views at 7 (citing Staff Report at
Tables V-2, V-6).
Court No. 13-00104                                                             Page 52




                                   CONCLUSION

            For the reasons provided above, the court denies Plaintiffs’ motions for

judgment on the agency record.

                                                            _/s/_Mark A. Barnett____
                                                               Mark A. Barnett
                                                                  Judge


             17
Dated: June ____, 2014
New York, New York
