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  • VI.

    CUMULATION

    • A.

      In General

For purposes of evaluating the volume and price effects for a determination of material injury by reason of the subject imports, section 771(7)(G)(i) of the Act requires the Commission to cumulate subject imports from all countries as to which petitions were filed and/or investigations self-initiated by Commerce on the same day, if such imports compete with each other and with domestic like products in the U.S. market.74 In assessing whether subject imports compete with each other and with the domestic like product, the Commission has generally considered four factors, including:

  • (1)

    the degree of fungibility between the subject imports from different countries and between imports and the domestic like product, including consideration of specific customer requirements and other quality related questions;

  • (2)

    the presence of sales or offers to sell in the same geographic markets of subject imports from different countries and the domestic like product;

  • (3)

    the existence of common or similar channels of distribution for subject imports from different countries and the domestic like product; and

  • (4)

    whether the subject imports are simultaneously present in the market.75

While no single factor is necessarily determinative, and the list of factors is not exclusive, these factors are intended to provide the Commission with a framework for determining whether the subject

imports compete with each other and with the domestic like product.76 competition is required.77

Only a “reasonable overlap” of

B. Analysis

Petitioner argues that, under the facts in this record, the Commission is required to cumulate imports from the three subject countries. No respondent has argued, that for purposes of our present injury analysis, imports from the three subject countries should not be cumulated.

73 (...continued) such that Section 771(24)(A)(iv) does not apply to such negligibility determinations at all. There is no evidence in the statute or legislative history to support such an interpretation. On the contrary, Section 771(B) speaks of applying subparagraph (A) to imports of subject merchandise from developing countries. If subparagraph (A) is applied, then this would include clause (iv) of that subparagraph. As Petitioner notes, Section 771(24)(A)(iv) incorporates the 4 percent threshold that is made applicable to Section 771(24)(A)(i) by Section 771(24)(B). The legislative history also supports the conclusion that Congress did not intend to exempt developing countries from the “potential to imminently exceed” analysis in threat investigations. See SAA at 856.

74

19 U.S.C. § 1677(7)(G)(i).

75 See Certain Cast-Iron Pipe Fittings from Brazil, the Republic of Korea, and Taiwan, Inv. Nos. 731-TA-278-280 (Final), USITC Pub. 1845 (May 1986), aff'd, Fundicao Tupy, S.A. v. United States, 678 F. Supp. 898 (Ct. Int'l Trade), aff'd, 859 F.2d 915 (Fed. Cir. 1988).

76

See, e.g., Wieland Werke, AG v. United States, 718 F. Supp. 50 (Ct. Int'l Trade 1989).

77 The SAA (at 848) expressly states that “the new section will not affect current Commission practice under which the statutory requirement is satisfied if there is a reasonable overlap of competition.” SAA at 848 (citing Fundicao Tupy, S.A. v. United States, 678 F. Supp. 898, 902 (Ct. Int'l Trade 1988)), aff'd 859 F.2d 915 (Fed. Cir. 1988). See Goss Graphic Sys., Inc. v. United States, 33 F. Supp. 2d 1082,1087 (Ct. Int’l Trade 1998) (“cumulation does not require two products to be highly fungible”); Wieland Werke, AG, 718 F. Supp. at 52 (“Completely overlapping markets are not required.”).

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