Wabtec Corp. v. United States

Slip Op. 26- UNITED STATES COURT OF INTERNATIONAL TRADE WABTEC CORP., Plaintiff, and STRATO, INC., Consolidated Plaintiff, v. Before: Gary S. Katzmann, Judge Consol. Court No. 23-00157 UNITED STATES, Defendant, and COALITION OF FREIGHT COUPLER PRODUCERS, Defendant-Intervenor. OPINION [ The U.S. International Trade Commission’s remand results are sustained. ] Dated: September 14, 2026 C. Kevin Marshall, Jones Day, of Washington, D.C., argued for Plaintiff Wabtec Corporation. Also on the briefs were Henry J. Dickman, Shelbie M. Rose, and Hannah Templin. James M. Smith, Covington & Burling LLP, of Washington, D.C, argued for Consolidated Plaintiff Strato, Inc. Also on the briefs were Sooan (Vivian) Choi, Wanyu Zhang and John Catalfamo; and also Andrew T. Schutz and Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, D.C. Michael Haldenstein, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, D.C., argued for Defendant United States. Also on the briefs were Margaret D. MacDonald, General Counsel, and Karl Von Schriltz, Assistant General Counsel for Litigation, and Garrett L. Peterson, Attorney-Advisor. Consol. Court No. 23-00157 Page 2 Daniel B. Pickard, Buchanan Ingersoll & Rooney PC, of Washington, D.C., argued for Defendant-Intervenor Coalition of Freight Coupler Producers. Also on the briefs was Claire M. Webster. Katzmann, Judge: The court returns in this case to a challenge to the determinations of the U.S. International Trade Commission’s (“the Commission”) that importation from China and Mexico of freight rail couplers (“FRCs”), components that connect freight rail cars, materially injured the domestic industry. See Certain Freight Rail Couplers and Parts Thereof from China, 88 Fed. Reg. 43398, 43398–99 (ITC July 7, 2023), P.R. 189 (“China Determination”); Certain Freight Rail Couplers and Parts Thereof from Mexico, 88 Fed. Reg. 77612, 77612 (ITC Nov. 13, 2023) (“Mexico Determination”) (collectively, “Final Determinations”). 1 In formulating the composition of the domestic industry for the purposes of the underlying antidumping and countervailing duty investigations, the Commission concluded in 2023 that appropriate circumstances did not exist to exclude Amsted, a domestic producer of FRCs and U.S. importer of Mexican FRCs, from the definition of the domestic industry. See Certain Freight Rail Couplers and Parts Thereof from China, Inv. Nos. 701-TA-682, 731-TA-1592 (Final) at 23, USITC Pub. 5438 (July 2023), P.R. 190, C.R. 178 (“Original Views”). When brought to this court for review, the court found last year in an Opinion and Remand Order that the Commission’s determination not to exclude Amsted was not supported by 1 The Commission's final determinations in the China and Mexico investigation became staggered when the U. S. Department of Commerce (“Commerce”) reached an earlier final antidumping and countervailing duty determination for China. See Certain Freight Rail Couplers and Parts Thereof From China and Mexico; Scheduling of the Final Phase of Countervailing Duty and Anti-Dumping Duty Investigations, 88 Fed. Reg. 16031, 16032 (ITC Mar. 15, 2023). Plaintiffs in this case challenge the China Determination. See Compl. ¶ 1, Sept. 13, 2023, ECF No. 9. A separate case challenging the Mexico Determination was stayed pending resolution of the instant case. See Order Granting Consent Mot. to Stay, Amsted Rail Co. v. United States, No. 23-00268 (U.S. Ct. Int’l Trade filed Dec. 15, 2023), Mar. 3, 2025, ECF No. 55. Because the Commission cumulated imports from China and Mexico for the purpose of its investigation, the two separate determinations follow the same analysis and reach the same result. Consol. Court No. 23-00157 Page 3 substantial evidence and remanded for “the Commission’s reconsideration or further explanation of its decision.” Wabtec Corp. v. United States, 49 CIT __, __, 805 F. Supp. 3d 1326, 1350 (2025) (“Remand Order”). “Given that Amsted was the second largest domestic producer, the court [did] not consider the Commission’s material[-]injury determination” at that time, deferring its consideration of that issue until after the Commission satisfactorily reconsidered or further explained its determination regarding the composition of the domestic industry. Id. at 1349. On remand, the Commission continued to find that appropriate circumstances do not exist to exclude Amsted from the domestic industry and maintained its original determination that the domestic industry was materially injured by reason of subject imports (FRCs) from China that were sold in the United States at less than fair value and that were subsidized by the government of China. Views of the Comm’n on Remand at 1–2, Feb. 11, 2026, ECF No. 117 (“Remand Results”). Plaintiff Wabtec Corporation (“Wabtec”) and Consolidated Plaintiff Strato, Inc. (“Strato”) (collectively “Plaintiffs”), both U.S. importers of FRCs, challenge the Remand Results. See Pls.’ Rule 56.2(H) Cmts. on the Int’l Trade Comm’n’s Remand Determination, Mar. 13, 2026, ECF No. 124 (“Pls.’ Remand Cmts.”); Pls.’ Mot. for J. on the Agency R. at 1, Aug. 19, 2024, ECF No. 45 (“Pls.’ Br.”). Plaintiffs ask the court to look behind the curtain to evaluate the votes of the individual Commissioners. See Pls.’ Remand Cmts. at 18. Plaintiffs argue that Commissioner Kearns’s further analysis of the domestic industry in support of the Commission’s determination not to exclude Amsted is contrary to the court’s Remand Order and not supported by substantial evidence. See id. at 5–16. Plaintiffs also continue to argue that the Commission’s affirmative material-injury determination is not supported by substantial evidence and not in accordance with law. See id. at 16–23. The court concludes that the Commission’s determination that appropriate circumstances Consol. Court No. 23-00157 Page 4 do not exist to exclude Amsted from the domestic industry, as developed further in the Remand Results, and its affirmative material-injury determination are supported by substantial evidence and in accordance with law. Thus, the court sustains both of the Commission’s determinations in the Remand Results. 2 BACKGROUND The court presumes familiarity with the facts and legal framework underpinning the administrative and judicial proceedings leading up to the Remand Order, see Remand Order, 805 F. Supp. 3d at 1334–36, and now recounts only that which is relevant to the court’s review of the Remand Results. I. Legal Background To facilitate fair trade, “[t]he Tariff Act of 1930, as amended, permits Commerce to impose two types of duties on imports that injure domestic industries:” countervailing duties on goods that receive countervailable subsidies from a foreign government and antidumping duties on goods sold in the United States at less than fair value. Guangdong Wireking Housewares & Hardware Co. v. United States, 745 F.3d 1194, 1196 (Fed. Cir. 2014). Commerce only imposes duties where, as relevant here, the Commission makes an affirmative final determination that “an industry in the United States is materially injured or is threatened with material injury, or the establishment of an 2 Plaintiffs brought two separate challenges to Commerce’s affirmative determinations in the antidumping and countervailing duty investigations of FRCs from China and Mexico. See Wabtec Corp. v. United States, 49 CIT __, __, 815 F. Supp. 3d 1390, 1396–97 (2025). The court previously remanded Commerce’s determinations to reconsider or further explain its determinations of the scope of the investigations. Id. at 1417. On remand, Commerce continued to find that attached FRCs should not be excluded from the scope of the investigations. See Final Results of Redetermination Pursuant to Ct. Remand, Wabtec Corp. v. United States, Court Nos. 23-00160, 23-00161 (U.S. Ct. Int’l Trade filed Aug. 14, 2023) (“Wabtec II & III”), ECF Nos. 74, 76, Apr. 13, 2026. Plaintiffs’ challenge to Commerce’s remand redetermination there is pending before the court. See Wabtec Corp.’s Rule 56.2(H) Cmts. on the Dep’t of Com.’s Remand Redetermination, Wabtec II & III, ECF Nos. 78, 80, May 13, 2026. Consol. Court No. 23-00157 Page 5 industry in the United States is materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation.” 19 U.S.C. §§ 1673d(b)(1); 1671d(b)(2). A Commission final injury determination generally comprises the votes of the six individual Commissioners, with the majority’s vote deciding the final determination of the Commission. See U.S. Steel Grp. v. United States, 96 F.3d 1352, 1360, 1362 (Fed. Cir. 1996). A. Domestic Industry and Related-Parties Analysis “[A]n industry in the United States,” or the domestic industry, consists of the U.S. “producers as a whole of a domestic like product, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of the product.” 19 U.S.C. § 1677(4)(A). The statute states that the Commission “may” undertake a related-parties analysis and exclude from the domestic industry producers that are related to an exporter or importer of subject merchandise or which are themselves importers “in appropriate circumstances.” Id. § 1677(4)(B); see also Torrington Co. v. United States, 16 CIT 220, 224, 790 F. Supp. 1161, 1168 (1992), aff’d, 991 F.2d 809 (Fed. Cir. 1993); Sandvik AB v. United States, 13 CIT 738, 748–49, 721 F. Supp. 1322, 1331–32, (1989), aff’d, 904 F.2d 46 (Fed. Cir. 1990); Empire Plow Co. v. United States, 11 CIT 847, 852, 675 F. Supp. 1348, 1352–53 (1987). “[T]he [related- parties] provision’s purpose is to exclude from the industry headcount domestic producers substantially benefitting from their relationships with foreign exporters.” USEC, Inc. v. United States, 25 CIT 49, 61, 132 F. Supp. 2d 1, 12 (2001), aff’d, 34 Fed. App’x 725 (Fed. Cir. 2002). “This provision was enacted ‘so that domestic producers whose interests in the imports were strong enough to cause them to act against the domestic industry would be excluded from the [Commission’s] consideration and investigation into material injury or threat thereof.’ ” Changzhou Trina Solar Energy Co. v. U.S. Int’l Trade Comm’n, 39 CIT 1105, 1117–18, 100 F. Supp. 3d 1314, 1326 (2015), aff’d, 879 F.3d 1377 (Fed. Cir. 2018) (quoting USEC, 25 CIT at Consol. Court No. 23-00157 Page 6 61, 132 F. Supp. 2d at 12). B. Material-Injury Determination The statute provides that “ ‘material injury’ means harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A). 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.” Hynix Semiconductor, Inc. v. United States, 30 CIT 1208, 1210, 431 F. Supp. 2d 1302, 1306 (2006) (citing 19 U.S.C. § 1677(7)(B)(i)(I)–(III)); accord GEO Specialty Chems., Inc. v. United States, 33 CIT 125, 127 (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)). In addition to finding material injury, the Commission must determine whether the injury is “by reason of” subject imports. 19 U.S.C. § 1673d(b). In undertaking this causation analysis, the Commission must examine factors other than subject imports to ensure that it is not attributing injury from other factors to the subject imports, thereby inflating an otherwise tangential cause of injury into one that satisfies the statutory material-injury threshold. See Statement of Administrative Action accompanying the Uruguay Round Agreements Act at 851–52, H.R. Rep. No. 103-316, vol. I (1994) (“SAA”) 3; Hynix Semiconductor, 30 CIT at 1223, 431 F. Supp. 2d at 1317 (requiring the Commission to “analyze compelling arguments that purport to demonstrate the comparatively marginal role of subject imports in causing that injury”). 3 The SAA “shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d). Consol. Court No. 23-00157 Page 7 II. Factual Background A. Freight Rail Couplers (“FRCs”) FRCs “connect two freight cars together by automatically interlocking the knuckles of both FRCs when the freight cars are pushed together, eliminating the need for previously required and potentially dangerous manual input.” Original Views at 9. In addition to connecting freight cars, FRCs “reduce shocks when freight cars are in transit or braking.” Id. Freight cars typically use two FRCs to allow for coupling additional freight cars together on both ends of the car. Id. B. Two Investigations of FRCs Two separate antidumping and countervailing duty investigations into U.S. imports of FRCs are relevant here, one of FRCs from China with a period of investigation of 2019–2021 (“FRC I”) and another of FRCs from Mexico and China with a period of investigation of 2020–2022. See Compl. ¶ 12, 20, Sept. 13, 2023, ECF No. 9. After Commerce issued an affirmative preliminary determination in FRC I, FRCs from China were subjected to provisional duties for the remainder of the FRC I investigations. See Freight Rail Coupler Systems and Certain Components Thereof From the People’s Republic of China: Preliminary Affirmative Determination of Sales at Less-Than-Fair Value, 87 Fed. Reg. 14511, 14512–13 (Dep’t Com. Mar. 15, 2022); see also Original Views at 39–40. At the end of FRC I, the Commission made a negative material injury determination and the investigation concluded without the imposition of further duties. Freight Rail Coupler Systems and Components from China, Inv. Nos. 701-TA-670, 731-TA-1570 (Final) at 3, USITC Pub. 5331 (July 2022), PR. 39, C.R. 42; see also Freight Rail Coupler Systems and Components from China, 87 Fed. Reg. 41144, 41144 (ITC 2022). Plaintiffs’ challenge here is to Commerce’s later FRC II investigations covering a period of investigation of calendar years 2020–2022. Compl. ¶¶ 48–73 . At the end of FRC II, the Commission made an affirmative material injury determination. Id. at ¶ 28; see also China Consol. Court No. 23-00157 Page 8 Determination, 88 Fed. Reg. at 43398–99; see also Mexico Determination, 88 Fed. Reg. at 77612. At multiple points in its analysis, the Commission distinguished FRC II from FRC I. For example, in its discussion of impact for the purposes of determining material injury, the Commission noted that: the Commission’s decision in [FRC I] was based on a different record with a different scope, and of course only concerned imports of FRCs (and certain additional components) from China. Specifically, the Commission found that the increase in nonsubject imports from Mexico (subject of the current investigations) explained the domestic industry’s market share loss over the [period of investigation]. Original Views at 58. C. Remand Proceedings Between the Commission’s original determination and its Remand Results, one voting Commissioner departed from the agency. See Def. United States Int’l Trade Comm’n’s Resp. in Supp. of the Comm’n’s Remand Determinations at 4, Apr. 13, 2026, ECF No. 128 (“Gov’t Remand Cmts.”). The Commission filed the final Remand Results with the court on February 11, 2026, maintaining its original affirmative material injury determination “that an industry in the United States is materially injured by reason of imports of FRCs from China that are sold in the United States at less than fair value . . . , and that are subsidized by the government of China.” Remand Results at 1. Commissioner Kearns wrote separately to “further explain . . . why appropriate circumstances do not exist to exclude Amsted from the domestic industry.” Id. at 2. III. Procedural History Wabtec and Strato filed joint comments in opposition to the Remand Results on March 13, 2026. See Pls.’ Remand Cmts. In their comments, Wabtec and Strato pull forward arguments regarding material injury from their motion for judgment on the agency record. See Pls.’ Br. Petitioner and Defendant-Intervenor the Coalition filed comments in support of the Remand Consol. Court No. 23-00157 Page 9 Results on March 16, 2026. See Cmts. in Supp. of the Final Results of Redetermination Pursuant to Court Remand, Mar. 16, 2026, ECF No. 126 (“Def.-Inter.’s Remand Cmts.”). Defendant the United States (“the Government”) filed its responsive comments in support of the Commission’s Remand Results on April 13, 2026. See Gov’t Remand Cmts. The court issued and the Parties responded to questions in advance of oral argument. See Letter Issued by the Ct., May 19, 2026, ECF No. 135; U.S. Int’l Trade Comm’n’s Written Resps. to the Ct.’s Questions, June 4, 2026, ECF No. 138 (“Gov’t OAQ Resp.”); Resp. to Questions for the Parties, June 4, 2026, ECF No. 140 (“Def.-Inter.’s OAQ Resp.”); Resps. to Questions from the Ct. on Remand Determinations, June 4, 2026, ECF No. 142 (“Pls.’ OAQ Resp”). With all papers filed, the court held oral argument as scheduled on June 24, 2026. See Order, June 9, 2026, ECF No. 146. As directed by the court, the Parties filed supplemental briefs following oral argument. See Pls.’ Post-Arg. Submission, July 8, 2026, ECF No. 149; Post-Arg. Submission, July 8, 2026, ECF No. 150; Def. U.S. Int’l Trade Comm’n’s Post-Arg. Submission, July 8, 2026, ECF No. 151. JURISDICTION AND STANDARD OF REVIEW Jurisdiction lies under 28 U.S.C. § 1581(c). The court will “hold unlawful any determination, finding or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Broadcom Corp. v. Int’l Trade Comm’n, 28 F.4th 240, 249 (Fed. Cir. 2022). To be supported by substantial evidence, a determination must account for “whatever in the record fairly detracts from its weight,” including “contradictory evidence or evidence from which conflicting inferences could be drawn.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed. Cir. 1994) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487–88 (1951)). Moreover, “when adequate evidence exists on both sides of an Consol. Court No. 23-00157 Page 10 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 (1951)). 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). A Commission determination regarding material injury 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 find a determination unlawful where [the agency] has failed to carry out its duties properly, relied on inadequate facts or reasoning, or failed to provide an adequate basis for its conclusions.” Rhone-Poulenc, Inc. v. United States, 20 CIT 573, 575, 927 F. Supp. 451, 454 (1996); see also 19 U.S.C. § 1516a(b)(1)(B)(i). The Commission “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co. Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)) (referring to the arbitrary and capricious standard); see also Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1378 (Fed. Cir. 2013) (citing Amanda Foods (Viet.) Ltd. v. United States, 33 CIT 1407, 1416, 647 F. Supp. 2d 1368, 1379 (2009)) (requiring the same of the agency with respect to the substantial evidence standard). DISCUSSION Plaintiffs argue throughout their briefing that the departure of a single Commissioner before the remand changes the Commission’s vote count, requiring a second remand or further Consol. Court No. 23-00157 Page 11 briefing from the parties. See Pls.’ Remand Cmts. at 17–18. Plaintiffs also argue that, regardless of the Commission’s composition on remand, the Commission’s determination to include Amsted in the domestic industry and its affirmative injury determination are not supported by substantial evidence and not in accordance with law. The court considers each of these arguments in turn below and concludes that (I) the departure of one Commissioner does not result in a new vote composition where the Commission on remand adopted its Original Views in their entirety, (II) the Commission’s determination as to the composition of the domestic industry as further explained by Commissioner Kearns is consistent with this court’s Remand Order and supported by substantial evidence, and (III) the Commission’s affirmative material-injury determination is supported by substantial evidence and in accordance with law. I. The Composition of the Commission Does not Affect the Court’s Analysis In issuing a redetermination on remand, the Commission has two options. “First, the agency can offer a fuller explanation of the agency’s reasoning at the time of the agency action,” Biden v. Texas, 597 U.S. 785, 808 (2022) (quoting Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 591 U.S. 1, 20 (2020)), in which case “ ‘the agency may elaborate’ on its initial reasons for taking the action, ‘but may not provide new ones,’ ” id. (quoting Regents, 591 U.S. at 21). “Alternatively, ‘the agency can deal with the problem afresh by taking new agency action.’ ” Id. (quoting Regents, 591 U.S. at 21). Here, the Commission took the first path: the Commission presented the same views, with fuller explanation provided by one of the Commissioners. See Remand Results at 1–2; see also Gov’t Remand Cmts. at 30 (noting that on remand, “none of the Commissioners changed their views on domestic industry or injury” and that “Commissioner Kearns provided further explanation”). The court holds that the change in the number of Commissioners on remand has no bearing on the court’s analysis because the Commission Consol. Court No. 23-00157 Page 12 provided further explanation of its initial determinations, rather than taking new agency action. When the Commission issued its Original Views, its determination both as to the composition of the domestic industry and as to material injury were split. See Original Views at 17 n.66, 3 n.1. 4 On the composition of the domestic industry, Commissioners Kearns and Schmidtlein found that appropriate circumstances do not exist to exclude Amsted and Commissioners Karpel and Johanson provided separate views finding that appropriate circumstances do exist to exclude Amsted from the domestic industry. Id. at 17 n.66; see also Separate Views of Chairman David S. Johanson and Commissioner Amy A. Karpel on Related Parties (July 7, 2023), P.R. 190, C.R. 180. Under 19 U.S.C. § 1677(11), which states that where the Commissioners’ votes “are evenly divided . . . the Commission shall be deemed to have made an affirmative determination,” the two votes affirmatively determining that appropriate circumstances do not exist to exclude Amsted constituted the Commission’s majority determination. On material injury, Commissioners Kearns, Schmidtlein, and Karpel found that an industry in the United States is materially injured or threatened with material injury by reason of subject imports, while Chairman Johanson determined that an industry in the United States is not materially injured or threatened with material injury by reason of those imports. See Original Views at 3 n.1. Commissioner Schmidtlein departed the agency on February 1, 2025. Gov’t Remand Cmts. at 4. With three participating Commissioners remaining on remand, the Commission maintained its previous determinations regarding the domestic industry and material injury. 4 Commissioner Stayin did not participate in these investigations, see Original Views at 3 n.2, and one seat on the Commission was unoccupied at the time of the Commission’s investigation such that only four Commissioners weighed in on the original determination: Chairman Johanson, Commissioner Karpel, Commissioner Kearns, and Commissioner Schmidtlein. Consol. Court No. 23-00157 Page 13 Remand Results at 1. 5 Commissioner Kearns provided additional analysis to “further explain” the Commission’s determination that appropriate circumstances do not exist to exclude Amsted from the domestic industry. Id. at 2. Commissioners Karpel and Johanson adopted and incorporated their original views in their entirety. Id. at 1 n.2. 6 The composition of the Commission, normally consisting of six Commissioners but here on remand reduced to just three, creates a somewhat unique scenario. Plaintiffs argue that, because Commissioner Schmidtlein departed from the agency, “a 2-1 majority of the Commission (Karpel and Johanson) now conclude[d] that Amsted does not belong in the domestic industry.” Pls.’ Remand Cmts. at 3 (emphasis omitted). According to Plaintiffs, “the deciding vote in favor of an affirmative determination rest[ed] on a factual premise that a majority of the Commission has rejected.” Id. at 4. Plaintiffs also argue that “[t]wo of the three sitting Commissioners reached an affirmative injury determination, but did so on different records” such that “each of the Commission’s two votes in support of an affirmative injury determination on the first remand must independently be supported by substantial evidence and not contrary to law.” Id. at 18. Contrary to Wabtec’s position, the departure of one Commissioner during the course of these proceedings does not mean that the Commission’s determinations lack sufficient support 5 The first page of the Remand Results presented the “Views of the Commission on Remand,” as opposed to the views of any individual Commissioner. Remand Results at 1. Therein, the Commission stated that “[u]pon consideration of the remand order and based on the evidence in the record of these investigations, we again determine that an industry in the United States is materially injured by reason of imports of FRCs from China that are sold in the United States at less than fair value . . . , and that are subsidized by the government of China.” Id. 6 Chair Karpel “adopt[ed] and incorporate[d] the Commission’s original determination finding that the domestic industry is materially injured by reason of subject imports, and the separate views on related parties that she and Commissioner Johanson joined in the original determination.” Remand Results at 1 n.2. Commissioner Johanson “adopt[ed] and incorporate[d] the separate views on related parties that he and Chair Karpel joined in the original and his dissenting views in the original.” Id. Consol. Court No. 23-00157 Page 14 because the Commission’s analysis has not changed on remand. The three Commissioners remaining could have “ ‘deal[t] with the problem afresh’ by taking new agency action,” Regents, 591 U.S. at 21 (quoting SEC v. Chenery Corp., 332 U.S. 194, 201 (1947)), but they did not do so. Cf. Diamond Sawblades Mfrs. Coal. v. United States, 612 F.3d 1348, 1353–54 (Fed. Cir. 2010) (noting that, following remand for further explanation, the Commission reversed its determination on material injury). Instead, the “Views of the Commission on Remand,” presented by all three Commissioners, reiterated the Original Views. See Remand Results at 1 & n.2. Likewise, Commissioner Kearns in his views on remand acknowledged that he could “reconsider” his analysis but, finding that route to be “unnecessary,” he opted to “further explain” the Commission’s original determinations. Id. at 2. In doing so, Commissioner Kearns “elaborate[d]” on the reasons providing in the Original Views without providing new reasons for those views. See Regents, 591 U.S. at 21. Because the Commission on remand adopted the Original Views with elaboration, not new reasons, the court considers the Remand Results to be further explanation of the Commission’s initial determinations rather than “new agency action.” Id. (emphasis in original); see also Diamond Sawblades, 612 F.3d at 1358 (affirming remand order that “simply required the Commission to explain in greater detail its decision and reasoning such that the court would have a basis for proper review”). The votes supporting the Commission’s determinations “at the time of the agency action” are unchanged by the further explanation that followed. Regents, 591 U.S. at 20 (emphasis omitted) (internal quotation marks and citation omitted). The court therefore turns to the substance of those determinations and considers whether the Commission’s Original Views, as supplemented by the further explanation provided in the Remand Results, are supported by substantial evidence and in accordance with law. Consol. Court No. 23-00157 Page 15 II. The Commission’s Determination that Appropriate Circumstances Do Not Exist to Exclude Amsted from the Domestic Industry as Further Explained by Commissioner Kearns Is Supported by Substantial Evidence and in Accordance with Law Recall that the Commission “may” undertake a related-parties analysis and exclude a producer of the domestic like product who is also an importer of the subject merchandise “in appropriate circumstances.” 19 U.S.C. § 1677(4)(B)(i). The term “may” reflects that exclusion of a domestic party is not mandatory and is left to the discretion of the Commission. See Nucor Corp. v. United States, 32 CIT 1380, 594 F. Supp. 2d 1320, 1346 (2008) (emphasizing the term “may” in concluding that the Commission has discretion in applying a different provision of the statute regarding the cumulation of subject merchandise from different countries). Legislative history confirms this interpretation, as the SAA states that the agency “will have discretion to apply this provision.” SAA at 858. This court has repeatedly upheld the Commission’s consideration of five factors in deciding whether “appropriate circumstances” exist for exclusion in a related-parties analysis: (1) the percentage of domestic production attributable to the importing producer; (2) the reason the U.S. producer has decided to import the product subject to investigation (whether the firm benefits from unfair trade practice or to enable them to continue production and compete in the domestic market); (3) whether inclusion or exclusion of the importing producer will skew the data for the rest of the industry; (4) the ratio of import shipments to U.S. production for the importing producer; and (5) whether the primary interest of the importing producer lies in domestic production or importation. Changzhou Trina, 39 CIT at 1121–22, 100 F. Supp. 3d at 1329 (quoting Allied Mineral Prods., Inc. v. United States, 28 CIT 1861, 1865 (2004)); see also Torrington Co., 16 CIT at 224, 790 F. Supp. at 1168. “The Commission is not required to make findings as to each specific factor.” Allied Mineral, 28 CIT at 1865; Sandvik AB, 13 CIT at 749, 721 F. Supp. at 1332; Changzhou Trina, 39 CIT at 1122, 100 F. Supp 3d at 1329. Here, the Commission originally found that appropriate circumstances do not exist to Consol. Court No. 23-00157 Page 16 exclude Amsted primarily because it found under factor (2) that Amsted’s “exclusion from the domestic industry would mask declines in the industry’s performance caused by subject import competition,” and because it found under factor (3) that Amsted’s “domestic production activities were shielded from competition with subject imports from China and Mexico during the [period of investigation].” Original Views at 23. The Commission noted under factors (1) and (4) that Amsted “imported and sold the vast majority of subject imports from Mexico during the [period of investigation],” and under factor (5) that “[Amsted] maintains that its subject imports from Mexico complement its domestic production rather than compete with it.” Id. at 19. The Commission concluded that, despite its findings under factors (1), (4), and (5), “the record shows that” appropriate circumstances do not support exclusion. Id. The court remanded the Commission’s determination not to exclude Amsted from the domestic industry because it “relied entirely on . . . underlying findings” under factors (2) and (3) “that were not supported by substantial evidence” and because “the Commission failed to appropriately weigh the [other] three factors.” Remand Order, 805 F. Supp. 3d at 1344. On remand, Commissioner Kearns provided further explanation on each of the five factors. Remand Results at 2. Plaintiffs argue that Commissioner Kearns’s treatment of factors (1), (2), and (4) in his further explanation is not in accordance with law, and that his further analysis of factors (3) and (5) are contrary to the court’s Remand Order and not supported by substantial evidence. See Pls.’ Remand Cmts. at 6–16. For the reasons set forth below, the court concludes that the Commission’s determination that appropriate circumstances do not exist to exclude Amsted from the domestic industry, as further explained by Commissioner Kearns on remand, is supported by substantial evidence and in accordance with law. Consol. Court No. 23-00157 Page 17 A. Commissioner Kearns’s Further Explanation of the Commission’s Treatment of the Factors is in Accordance with Law On remand, Commissioner Kearns provided further explanation for how the Commission analyzed factor (1) regarding Amsted’s share of domestic production, factor (2) regarding Amsted’s reason for importation, and factor (4) regarding Amsted’s ratio of imports to domestic production. Commissioner Kearns stated that factors (1) and (4) “address a threshold question, aiding in determining whether to delve deeper into the thorny issue of whether ‘appropriate circumstances’ exist to exclude.” Remand Results at 12 (emphasis in original). On factor (2), Commissioner Kearns specified that “consideration of whether Amsted benefited from its subject imports is focused solely on its operations producing the domestic like product, . . . not on whether subject imports benefited its operations producing ‘other’ products outside the scope of investigation.” Id. at 24. Plaintiffs take issue with Commissioner Kearns’s further explanation of factors (1) and (4) as threshold factors and his focus on the domestic like product in analyzing factor (2). i. Commissioner Kearns Further Explanation that Factors (1) and (4) Are a Threshold Question Is in Accordance with Law Recall that factor (1) is “the percentage of domestic production attributable to the importing producer,” and that factor (4) is “the ratio of import shipments to U.S. production for the importing producer. Changzhou Trina, 39 CIT at 1121–22, 100 F. Supp. 3d at 1329. Plaintiffs argue that “Commissioner Kearns cited no support for treating factors (1) and (4) as ‘threshold questions,’ ” and that “he admitted his approach was both novel and provisional.” Pls.’ Remand Cmts. at 8 (quoting Remand Results at 10 n.36). According to Plaintiffs, Commissioner Kearns’s “unprecedented approach caused him to effectively sweep these factors under the rug,” by “reduc[ing] them to supposed triggers for review under other factors, and then those other factors did all the work, these two having (again) fallen away into irrelevance.” Id. (quoting Remand Consol. Court No. 23-00157 Page 18 Results at 31). Commissioner Kearns’s further explanation that factors (1) and (4) are threshold factors is in accordance with law. “[A]s long as the Commission’s analysis does not violate any statute and is not otherwise arbitrary and capricious, the Commission may perform its duties in the way it believes most suitable.” U.S. Steel Grp., 96 F.3d at 1362. The factors that the Commission considers in determining whether appropriate circumstances exist to exclude a producer from the domestic industry were developed by the Commission and approved by this court, but do not come from the Commission’s statutory mandate. Even in approving the factors, this court has noted that “[t]he Commission is not required to make findings as to each specific factor.” Allied Mineral, 28 CIT at 1865. Here, Commissioner Kearns explained why factors (1) and (4) are threshold factors, stating that “[u]nder the first factor, a very small producer is unlikely to be excluded because its data don’t move the needle for the industry