Full opinion text
Opinion CARMAN, Chief Judge. Pursuant to Rule 56.2 of the Rules of this Court, plaintiffs, Ranchers-Cattlemen Action Legal Foundation (R-CALF), move for Judgment Upon An Agency Record. Plaintiffs contest the negative preliminary injury determination concerning live cattle from Mexico of the United States International Trade Commission (ITC or Commission) in its investigation in Live Cattle from Canada and Mexico, 64 Fed.Reg. 3716 (Jan. 25, 1999). This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c)(1988). Background On November 12, 1998, plaintiffs, R-CALF, filed petitions with the ITC and the United States Department of Commerce alleging that the U.S. cattle industry was materially injured by reason of subsidized imports of live cattle from Canada and by reason of less than fair value imports of live cattle from Canada and Mexico. In response to the plaintiffs’ petition, the ITC conducted preliminary investigations into these matters. On January 19, 1999, the Commission reached a negative preliminary injury determination with respect to less than fair value imports, from Mexico. The ITC’s negative determination regarding Mexican cattle and a public version of its staff report are set forth in Live Cattle from Canada and Mexico, USITC Pub. 3155, Invs. Nos. 701-TA-386 (Prelim.) and 731-TA-812-813 (Prelim.) (Feb.1999) (Live Cattle from, Mexico). The ITC made affirmative preliminary determinations in the investigations concerning live cattle from Canada, and plaintiffs do not appeal from those determinations. The imports at issue here concern live cattle from Mexico. There are, in general, three developmental stages for cattle prior to slaughter: (1) calves, which are raised and then weaned from their mothers at five to ten months; calves weigh up to 400-650 pounds; (2) yearling/stocker cattle, which have been weaned from then-mothers and are fed on forage and roughage feeds or grazed on pasture until they are about 12-20 months old; yearling/stocker cattle generally weigh between 400 to 650-750 pounds; and (3) feeder cattle, which are kept in confined areas for 90 to 150 days and fed on finishing and high-energy rations; feeder cattle weigh up to 1,100 to 1,300 pounds. Once the cattle are sufficiently fed, they are considered fed, fat, or slaughter cattle. Fed, fat, and slaughter cattle are cattle ready for immediate slaughter. In making its preliminary injury determination concerning live cattle from Mexico, the ITC considered, among other things, issues regarding domestic like product, domestic industry, cumulation, conditions of competition, and reasonable indication of material injury or threat of material injury by reason of the subject imports from Mexico. In consideration of the domestic like product determination, the ITC considered whether live cattle in the primary stages of development should be defined as' separate domestic like products from the cattle at more advanced stages of development. The ITC used a semifinished like product analysis to determine whether the cattle at earlier stages of development are “like” the cattle at more advanced stages of development. Applying the semifinished like product analysis, the ITC determined that cattle at each stage of development are dedicated to progression to the next stage and will ultimately develop into fed cattle ready for slaughter. Thus, cattle have no independent use or function other than being slaughtered. The ITC found, however, that cattle at different stages of production are not functionally or economically interchangeable since at each stage prior to their final stage, they have not reached their slaughter weight. Moreover, the ITC found that while some operations raise cattle from birth until they are ready for slaughter, it is more common for cattle to be sold at various stages of development. Based on these facts, the ITC defined the domestic “like product” as encompassing all stages of development for live cattle. In determining the scope of the domestic industry, the ITC found that the domestic industry consists . of all U.S. ■ production of the domestic like product, live cattle. In determining whether to assess cumulatively the volume and effect of imports from Mexico with the imports from Canada pursuant to 19 U.S.C. § 1677(7)(G)(i) (1994), the ITC considered whether the imports competed with each other and with the domestic like product in the United States. To determine whether the imports competed with each other, the ITC applied its traditional four-factor test: (1) the degree of fungibility between the imports from the two countries; (2) the presence of sales or offers to sell imports in the same geographic market from the two countries; (3) the existence of common or similar channels of distribution for imports from the two countries;, and (4) whether the imports from the two countries were simultaneously present in the market. In regard to the first factor, the ITC found there was not a' sufficient degree of fungibility between the imports from Canada and Mexico. Based on measurement by weight, the ITC found that virtually all subject imports from Canada (95.4 percent by weight) in 1997 weighed over 320 kilograms, or more than 704 pounds, primarily fed cattle ready for immediate slaughter. In contrast, virtually all imports from Mexico (96 percent by weight) in 1997 weighed between 90-320 kilograms, or 198-704 pounds, primarily at the calf or yearling/stocker stages of development. The ITC found the live cattle that have not been fed to slaughter weight are not substitutes for cattle ready for slaughter. As the Commission found cattle in different stages of production are poor substitutes for each other, the ITC determined imports. from Canada and Mexico were poor substitutes for each other. Further, the ITC found the cattle imported from Canada were more likely to be British breeds that are likely to produce higher-priced prime and choice quality grade meats. Cattle imported from Mexico, however, were usually Brahman or Brahman cross-breeds which were less likely to produce prime or choice-grade meats. For the reasons stated above, the ITC found limited fungibility existed between the imports of live cattle from Canada and Mexico. In regard to factor two, geographic overlap, the Commission found there was limited overlap between the markets for the imports from Canada and Mexico. The majority of the subject imports from Mexico entered into four states: Texas, California, New Mexico, and Arizona. The majority of the subject imports from Canada entered into five states: Washington, Utah, Nebraska, Colorado, and Minnesota. The imports from Canada and Mexico overlapped in only five states. Therefore, the ITC found there was limited geographic overlap between the markets for the subject imports from Canada and Mexico. In regard to factor three, channels of distribution, the ITC found the channels of distribution for the imported cattle depended on the stage of development at purchase. The primary channels of distribution for imports from Mexico were stocker/yearling operators. The primary channels of distribution for imports from Canada were slaughterhouses or packers. Thus, the ITC found there was an insufficient degree of overlap among the channels of distribution to support a finding of competition between the subject imports. In regard to factor four, simultaneous presence in the U.S. market, the ITC determined live cattle from Mexico and Canada were simultaneously present in the U.S. market during the period of investigation. Based on the above factors, the ITC found the subject imports from Canada and Mexico did not compete with each other, and, therefore, the ITC decided not to cumulate the imports. In the preliminary injury determination, the ITC found there was no reasonable indication of material injury of the domestic industry by reason of the subject imports from Mexico. The ITC found that the volume and market share of the imports from Mexico were too small throughout the period of investigation to significantly affect the domestic price pursuant to 19 U.S.C. § 1677(7)(C)(ii) (1994). Specifically, the ITC found, “[t]he volume and market share of the[] [Mexican] imports [were] declining and [were] at historical low levels.” Live Cattle from Mexico at 24. Moreover, the prices for the cattle at the stocker and feeder stages of development in the United States “increased from 1996 to 1998.” Id. Thus, the ITC found the small and decreasing volume and market share of imports from Mexico had not had a significant adverse impact on the domestic industry. The ITC attributed any weak performance in the domestic industry to the fact that the domestic industry was in the liquidation phase of the cattle cycle during the period of investigation. Additionally, the ITC found there was no reasonable indication that the domestic industry was threatened with material injury by reason of the subject imports from Mexico. The volume of imports from Mexico was small and decreasing over the period of investigation, and there was no indication of excess production capacity in Mexico which could further the likelihood of an increase in imports from Mexico. Moreover, the ITC found no other adverse trends in relation to the imports from Mexico. The ITC determined, therefore, that there was no reasonable indication of threat of material injury by reason of the subject imports from Mexico. Contentions of the Parties A. Plaintiffs Plaintiffs, R-CALF, first argue that the ITC misconstrued the cumulation provision of 19 U.S.C. § 1677(7)(G)(i). Plaintiffs contend that the ITC equated “competition” with product “fungibility,” “thereby foreclosing from consideration other evidence of competition between imports.” (Memorandum of Points and Authorities in Support of R-CALF’s Motion for Judgment Upon the Agency Record at 16 (Plaintiffs’ Mem.).) Consequently, plaintiffs allege, the ITC never took into account facts which showed a reasonable degree of overlap of competition existed between the imports from Mexico and Canada. Plaintiffs argue that the high standard the ITC used for determining whether the imports from Canada and Mexico compete is contrary to the statute and Congressional intent. According to plaintiffs, the language of the statute merely requires that the products imported from various countries “compete with” each other, not that they be directly interchangeable upon importation. Further, plaintiffs argue, the legislative history makes it clear that “competition” can exist on many levels and that Congress intended cumulation to be applied broadly in “ ‘an effort to make the application of the injury analysis more realistic (Plaintiffs’ Mem. at 24 (emphasis omitted) (quoting H. Rep. No. 100-40, Part I, 100th Cong., 1st Sess. (1987) at 130).) In contrast, plaintiffs argue, the ITC’s construction of the law here limits the analysis as to whether imports are fungible upon entry. Such a narrow interpretation, plaintiffs contend, is erroneous and not subject to deference by the Court. Moreover, such a narrow interpretation of the statutory language is contrary to the statutory scheme as a whole. Plaintiffs also argue that the ITC departed from long-standing agency practice of cumulating finished and unfinished products when it failed to cumulate the subject imports. Plaintiffs argue the ITC has routinely cumulated imports from multiple countries where imports from one country have entered the United States at a different stage of development or production than imports from another country but where both products were intended for the same end use. The ITC’s abrupt and unexplained departure from 'prior ITC practice regarding cumulating finished and unfinished products, according to plaintiffs, was arbitrary and capricious and an abuse of discretion. Plaintiffs additionally argue that the ITC inappropriately used a different and more rigorous standard of interchangeability for cumulation than it used to define like product. Plaintiffs point to comments from two Commissioners and at least one judicial opinion from this Court to support their argument that the application of different standards of interchangeability for cumulation and like product is in error. Due to this arbitrary application of different standards of interchangeability, plaintiffs argue, the ITC’s determination must be reversed. Plaintiffs also argue that the agency’s finding that imports from Canada and Mexico do not compete is not supported by clear and convincing evidence. First, plaintiffs argue the ITC’s decision not to cumulate because of the insufficient fungi-bility of imports is contrary to the ITC’s past practice. According to plaintiffs, “the ITC has never declined to cumulate imports in a preliminary injury investigation due to inadequate fungibility.” (Plaintiffs’ Mem. at 32 (emphasis omitted).) Plaintiffs argue because the ITC has never declined to cumulate by reason of inadequate fungi-bility, the ITC’s decision in this case goes against long-established agency practice. Second, plaintiffs argue, the ITC’s finding regarding cumulation rests on erroneous statements of fact and therefore does not comply with the clear and convincing evidence standard required for preliminary determinations. According to plaintiffs, the ITC erred in concluding “ ‘there appears to be no direct relationship between the prices for stocker/feeder cattle ... and fed cattle ready for slaughter,’ ” (Plaintiffs’ Mem. at 34 (quoting Live-Cattle from Mexico at 24-25)), as there is evidence to the contrary. Plaintiffs further contend the ITC erred in concluding that “‘the purchasers, and thus the channels of distribution, vary depending on the stage of [development of the cattle].’ ” (Reply to Opposition of Defendant and Defendant-Intervenors to Plaintiffs’ Motion for Judgment Upon the Agency Record (Plaintiffs’ Reply) at 3 (brackets in original) (quoting Live Cattle from Mexico at 14).) Such a statement is erroneous, plaintiffs allege, as there is evi-denee to the contrary. Specifically, there is evidence in the record that “feedlots may acquire stocker cattle as well as feeder cattle and that packers (i.e., the slaughterhouses) may acquire feeder cattle as well as fed cattle ready for slaughter.” (Plaintiffs’ Reply at 3.) As there is evidence that some purchasers acquire cattle at more than one stage of development, plaintiffs argue, the ITC’s premise is factually wrong and its conclusion reversible error. An additional factual error, according to plaintiffs, concerns the ITC’s analysis of the geographic overlap of imports. According to the ITC, “[i]mports of Canadian and Mexican cattle overlap in only five states (Colorado, Indiana, Kansas, Nebraska, and Texas).” Live Cattle from Mexico at 13. According to plaintiffs, the ITC committed error in finding imports from Mexico and Canada overlapped in Indiana, rather than in Idaho. Plaintiffs argue the misidentification of Indiana is not a “harmless” error because, unlike Indiana, Idaho borders Canada. Thus, the ITC’s analysis regarding geographic overlap was in error. Third, plaintiffs argue, the ITC’s determination regarding cumulation lacks sufficient thoroughness, reflects uncertainty, and betrays fundamental misunderstandings about the industry. The agency’s cu-mulation determination, therefore, is not supported by clear and convincing evidence and should be reversed and remanded. Specifically, plaintiffs argue the ITC failed to appreciate the national nature of the U.S. cattle market and therefore did not recognize the potential impact any geographic overlap among the imports from Canada and Mexico might have had on the national market. Further, the agency did not recognize the significance of the states in which the imported cattle overlap. According to plaintiffs, the overlapping states cited by the ITC account for seventy-one percent of total cattle on feed in the United States. Further, plaintiffs argue, the ITC failed to thoroughly analyze the overlap of imports of stocker and feeder cattle from the importing countries, as the Commission parsed the imports of stocker and feeder cattle by weight instead of by head count. Given the nature of the ITC’s analysis in this case, plaintiffs contend, the decision should be reversed and remanded. .Additionally, plaintiffs argue the ITC’s negative preliminary injury determination, including considerations of import volume, price, and impact, failed to satisfy the clear and convincing standard and therefore was contrary to law. Concerning the volume of imports, plaintiffs contend the ITC focused erroneously on the decline in imports from 1995. Rather, plaintiffs argue, the ITC should have focused on the dramatic increase in imports from Mexico between the second and third years of the period of the investigation. Plaintiffs argue that as the ITC admits “ ‘even relatively small volumes’ of imports ‘can have significant price effects in this price-sensitive market,’ ” it should have taken into account the rapid increase in imports from Mexico from 1996 to 1997. (Plaintiffs’ Mem. at 46 (quoting Live Cattle from Mexico at 20).) Concerning price, plaintiffs argue in their reply brief the ITC concluded in error that “ ‘there appears to be no direct relationship between the prices for stocker/feeder cattle ... and fed cattle ready for slaughter.’” (Plaintiffs’ Reply at 20 (quoting Live Cattle from Mexico at 24-25).) This statement was erroneous, assert plaintiffs, because there was unrebutted evidence to the contrary. Such evidence included testimony that low fat cattle prices were depressing prices for stocker and feeder cattle and that the price of yearling/stocker cattle was a direct function of the cost of feed and the rate of fat cattle. Further, economic analysis showed there was a direct effect of imported feeder cattle on the price of feeder and fat cattle in the U.S. as well as a direct effect of imports of fat cattle on fat and feeder prices in the United States. Therefore, plaintiffs contend, the assumption that prices at different stages of development are not related is factually wrong. Also concerning price, plaintiffs contend that the Commission incorrectly relied on the absence of evidence of underselling by imports from Mexico whereas it discounted the evidence regarding the presence of underselling by imports from Canada. Moreover, plaintiffs point out that the ITC focused on two different time periods in its analysis of trends in import volumes and prices. According to plaintiffs, the ITC focused on the overall change in import volumes from 1995 to 1997 and on domestic prices between 1996 and 1998. Plaintiffs argue the use of different time periods is arbitrary and capricious. Plaintiffs also point to evidence which appears to contradict the ITC’s finding that U.S. stocker prices increased between 1996 to 1998. Further, plaintiffs point to a statement by the ITC indicating supplies of U.S. feeder cattle in connection with imports of feeder cattle from Mexico in 1995 “ ‘contributed to the decline in feeder cattle prices [in 1996].’” (Plaintiffs’ Mem. at 48 (citing Cattle and Beef: Impact of the NAFTA and Uruguay Round Agreements on U.S. Trade, USITC Pub. 3048, at 2-16 (July 1997), AR Doc. 232, in Appendix of Public Record Documents to Accompany Plaintiffs’ Rule 56.2 Motion for Judgment Upon the Agency Record (Plaintiffs’ App.).) Plaintiffs question the ITC’s apparent lack of explanation for its departure from the earlier finding. Concerning impact, plaintiffs contend the ITC failed to explain why economic analysis that provided quantitative estimates of the financial impact of Mexican imports on domestic producers did not have a significant adverse impact in the U.S. Moreover, plaintiffs argue, the ITC failed to explain in the case at bar why the industry’s weak performance was attributed to the industry’s “ ‘liquidation phase of the cattle cycle’ ” rather than to the imports from Mexico as had occurred with the Canadian case. (Plaintiffs’ Mem. at 49 (quoting Live Cattle from Mexico at 26).) Such analysis, plaintiffs contend, does not comport with the clear and convincing standard required of preliminary determinations. Plaintiffs further contend that the ITC failed to consider what additional information on competition between imports would be collected in the final investigation. According to plaintiffs, the ITC relied heavily on secondary evidence, while only relying on a small sampling of primary evidence. Moreover, the primary evidence mainly consisted of limited responses to importer questionnaires. In a final review, plaintiffs contend, the ITC likely would be able to collect information which could support a contrary outcome regarding cumulation and injury. B. Defendant Defendant, United States International Trade Commission, argues the Commission’s determination not to cumulate subject imports was based on clear and convincing evidence and therefore was not arbitrary or capricious and was otherwise in accordance with law. Defendant also asserts the plaintiffs’ arguments inappropriately invite the Court to conduct a de novo review of the evidence and to substitute the Court’s judgment for that of the Commission, a review unsupported by case law. Additionally, the Commission contends that, contrary to plaintiffs’ allegations, the ITC conducted a thorough analysis of the evidence, using traditional cumulation factors, to determine whether the subject imports from Canada and Mexico competed with each other and rationally determined, based on the evidence before it, that they did not. Specifically, the ITC contends that this Court and Congress have affirmed the Commission’s practice of considering four factors to assess whether subject imports compete with each other for the purposes of determining whether to cumulate imports. These factors are: (1) the degree of fungibility between the imports from different countries and between imports and the domestic like product; (2) the presence of sales or offers to sell in the same geographic markets of imports from different countries and the domestic like product; (3) the existence of common or similar channels of distribution for imports from different countries and the domestic like product; and (4) whether the imports are simultaneously present in the market. According to defendant, the ITC used these factors as prescribed by law and, based on an independent evaluation of the factors with respect to each economic situation, made its competition determination. The Commission also argues both the Courts and Congress have endorsed the Commission’s practice of finding competition between the subject imports only where there is a “reasonable overlap” in competition between the subject imports. In applying this standard to the four-factor test, the ITC argues it found no reasonable overlap in competition between cattle imported at different stages of development. Further, the Commission argues that although it may not have specifically addressed plaintiffs’ arguments that the market for live cattle is national, the Commission is presumed to have considered all evidence in the record, and it is not required to comment on every piece of evidence presented by the parties. The ITC additionally argues it followed established practice in reaching its final determination. Contrary to plaintiffs’ argument, the ITC contends it is established practice to analyze the facts of each case in terms of the factors customarily used in a cumulation analysis. For example, the Commission has not cumulated imports from multiple countries where, as here, imports from multiple countries were different products with very little overlap in competition between respective imports. In contrast, where imports from one country were the same products as those imported from another country, the ITC has cumulated the products. In accordance with established practice, defendant argues, the ITC here correctly made its cu-mulation determination based on the specific facts in the record. The Commission next argues it reasonably found that the evidence relating to its traditional four-factor test clearly and convincingly supported a decision not to cu-mulate subject imports from Mexico and Canada. First, concerning fungibility, the ITC argues it correctly found there was not a sufficient degree of fungibility based on the facts underlying the investigations. Specifically, the Commission found there are distinct developmental stages for cattle: calf stage, stocker/yearling stage, and feeder stage. The Commission found the transformation from calf to fed cattle to be significant, given the fact the animal doubles or triples in size from a weaned calf of 400 pounds to a slaughter weight of 1,200 pounds. The Commission found subject imports from Mexico differ in their developmental stages from the imports from Canada. For example, official import statistics show that virtually all cattle from Mexico (96 percent by weight) in 1997 were cattle weighing between 90-320 kilograms, or 198-704 pounds, primarily corresponding with the calf or stacker stage of development while virtually all cattle from Canada (95.4 percent by weight) in 1997 weighed over 320 kilograms, or more than 704 pounds, primarily fed cattle ready for immediate slaughter. The Commission found, based on this evidence, that the imports from Mexico and Canada were imported at different stages of development. The ITC argues it further found that live cattle which have not been fed to slaughter “are not substitutes for cattle ready for immediate slaughter.” (Defendant United States International Trade Commission’s Memorandum in Opposition to Plaintiffs’ Motion for Judgment Upon the Agency Record (Defs Mem.) at 28.) Specifically, the ITC found that cattle not at the slaughter stage will not produce the same type of marketable beef in terms of quality and sized pieces. The Commission found because cattle in different stages of development are poor substitutes for each other, the imports from Canada and Mexico are poor substitutes for each other as well. The ITC also argues it found that there were differences in the breeds, condition/health, and individual genetics among the subject imports from Mexico and Canada which may affect the quality grade of the meat the animals produce. According to the ITC, the evidence showed that cattle imported from Canada tended to be British breeds {e.g., Angus, Hereford) that are likely to produce high-priced and choice quality grade meat. Subject imports from Mexico, on the other hand, were usually Brahman or Brahman cross-breeds which are less likely to produce prime or choice grade meats. Based upon evidence showing distinctions among levels of development of the cattle, differences in the quality of meat produced at the various stages of development of the cattle, and differences in the breeds of the cattle imported from Canada and Mexico, the Commission contends it was reasonable for the ITC to find no fungibility existed among the subject imports from Canada and Mexico. Further, defendant argues, the inquiry concerning fungibility for the purposes of cumulation differs from an inquiry into fungibility in another context. According to defendant, “[tjhis Court repeatedly has held that ‘like product, cumulation, and causation are functionally different inquiries because they serve different statutory purposes. As a result, each inquiry requires a different level of fungibility.’” (Def.’s Mem. at 29 (quoting BIC Corp. v. United States, 964 F.Supp. 391, 399 (CIT 1997) (citation omitted)).) Thus, the fact that the ITC found one like product at all stages of cattle development does not negate its finding that the subject imports from Mexico and Canada for cumulation purposes are not fungible. Moreover, defendant argues, the ITC did not find the products to be interchangeable for the like product analysis in this instance. Thus, its finding regarding interchangeability in its domestic like product determination is consistent with its finding concerning fungibility in its cumulation determination. Second, the Commission argues it reasonably found there was only limited geographic overlap between the subject imports from Mexico and Canada as there were only five states in which the subject imports overlapped. Moreover, although the ITC acknowledges it misidentified Indiana rather than Idaho as one of the five overlapping states, the ITC argues the misidentification was harmless. Defendant argues the misidentification caused no change in the total import data only in the identification of the name of the state. Further, the import data for Idaho evidenced a lower" degree of overlap between Canadian and Mexican imports than the comparison based on data from Indiana. Despite the error, defendant argues,. its conclusions were supported by evidence in the record, and defendant had a rational basis for its conclusion. Third, defendant argues its determination regarding channels of distribution was correct as the Commission found the purchasers, and thus the channels of distribution, vary depending on the stage of development of the cattle. According to defendants, the channels of distribution for cattle weighing under 650 pounds are backgrounding or stocker/yearling operations. On the other hand, defendant argues, cattle ready for slaughter are purchased by the packers or their order buyers. As virtually all subject imports from Mexico are imported at the stock-er/yearling stage of development and as virtually all subject imports from Canada are imported at the slaughter stage, the subject imports from each country entered through different, channels of distribution. Thus, the Commission argues, it reasonably found that imports from Canada and Mexico enter the U.S. through different channels of distribution as.they are at different stages of development. As the ITC found the subject imports from Mexico and Canada were insufficiently fungible and the channels of distribution of the subject imports were different because the imports enter at different stages of development, it was reasonable, the ITC argues, for the ITC to find there was no reasonable overlap of competition between imports from Canada and Mexico. Next, the ITC contends the Commission’s negative injury determination regarding imports of live cattle from Mexico was not arbitrary or capricious and was otherwise in accordance with law. In making its determination, defendant argues, the Commission properly considered the volume of the subject imports, their effect on prices for the domestic like product, and their impact on domestic producers of the domestic like product. Given these considerations, the ITC contends it reasonably concluded that clear and convincing evidence supported a negative injury determination. Specifically, the ITC argues it reasonably concluded based on the small volume of subject imports from Mexico and the Mexican imports’ small share of the U.S. market that the volume of imported cattle from Mexico was not significant. The ITC found the volume and market share of subject imports from Mexico were small over the period of investigation. Moreover, the Commission contends, the quantity of imports by weight and by head decreased over fifty percent since 1995, and despite some increases in imports from Mexico during the interim period, the imports remained at historically low levels. Furthermore, defendant found the number of Mexican imports held a small and decreasing share of the U.S. market, declining from 1.7 percent in 1995 to 0.5 percent in 1997 and 1998. Although the ITC acknowledges imports from Mexico were at their highest in 1995, defendant argues this high volume of imports was an aberration attributable to the drought in Mexico at the time and that the Commission reasonably chose to focus on the small volume of imports over the period of the investigation. Such facts, defendant contends, reasonably constitute clear and convincing evidence that the volume of subject imports from Mexico was not significant. Defendant additionally argues the Commission reasonably concluded that the insignificant volume of imports from Mexico has not adversely affected domestic prices to a significant degree in accordance with the requirements under 19 U.S.C. § 1677(7)(C)(ii). Defendant states it focused its determination of the price effects of imported cattle from Mexico on the historically low and declining levels of imports from Mexico. Further, the ITC contends it found the prices for stocker and feeder cattle in the U.S. market increased from 1996 to 1998. As the ITC found no direct relationship between the pricing data for stocker/feeder cattle and for fed cattle ready for immediate slaughter, the Commission argues it reasonably found the insignificant volume of Mexican imports did not adversely affect domestic prices to a significant degree. The Commission also asserts plaintiffs’ contention that the Commission used different time periods for analyzing price and volume in its material injury determination is inaccurate. Rather, defendant argues, it considered data over the entire period of the investigation concerning both volume and price for both Canada and Mexico. Therefore, the ITC contends, it did consider data over the entire period of the investigation for both the import volume and price sections of the determination. The ITC additionally argues the Commission reasonably concluded based on the record that the subject imports from Mexico have not had a significant adverse impact on the domestic industry of live cattle. The Commission contends it was reasonable for it to conclude the imports from Mexico did not have a significant adverse impact on the domestic industry because it found the subject imports held only a small and declining share of the U.S. industry. Moreover, the Commission also found that the cattle industry’s weak performance represented a normal cyclical downturn expected during the liquidation phase of the cattle cycle. Because of the small volume of imports and the nature of the industry’s cycle during the period of investigation, the ITC argues it reasonably concluded that the cattle industry’s downturn was not exacerbated by the insignificant volume of Mexican imports. The Commission’s final argument is that no likelihood exists that contrary evidence would arise in a final investigation in accordance with the requirements of 19 U.S.C. § 1673b(a) (1994), as interpreted by the ITC and upheld by this Court. See American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.1986). The Commission argues it relied on complete data for its determination. Although the ITC acknowledges it used primarily secondary sources to reach its negative injury determination, the ITC asserts such a reliance was reasonable given the extremely large and dispersed nature of the domestic live cattle industry. Further, as the ITC had complete, comprehensive, and reliable information for its secondary sources (e.g., data compiled by the U.S.D.A. and official import statistics), there is no evidence these sources would change or add more information in the near future. Moreover, defendant argues, plaintiffs supported the use of secondary sources and did not challenge the methodology for obtaining the information nor the sufficiency of it during the course of the ITC’s investigation. As a result, the Commission asserts, the plaintiffs cannot now complain about the Commission’s methodology. C. Defendant-Intervenor Defendant-Intervenor, Confederación Nacional Ganadera (CNG), contends the plaintiffs, through their argument, have improperly asked the Court to depart from the established standard of review. CNG asserts the plaintiffs- argue the Commission erred, not by not having sufficient evidence on the record to make its determination, but rather because it analyzed the evidence in a neutral ,and balanced manner. Thus, plaintiffs essentially ask •for reversal because the ITC did not analyze the evidence in light more favorable to the petitioners. CNG contends, however, that the Commission acted entirely properly in weighing the evidence before it and resolving conflicts within the evidence before making its determination. Moreover, CNG argues, plaintiffs have not shown that the decision lacked a rational basis in fact. Accordingly, CNG contends, the appeal must be dismissed. Next, CNG argues the Commission correctly decided not to cumulate subject imports from Mexico and Canada. According to CNG, the Commission’s decision not to cumulate flowed from its determination that the imports from Mexico and Canada do not compete. As the determination was based on facts well-supported by the evidence on the record, the Commission’s determination, CNG contends, should be affirmed. Specifically, CNG argues, the Commission properly employed its traditional four-factor test, which has been approved by this Court and the Federal Circuit Court of Appeals, to determine whether the subject imports from Mexico and Canada compete pursuant to 19 U.S.C. §§ 1677(7)(G)(i) and 1677(7)(H) (1994). In applying its test, CNG asserts, the Commission considered all four factors. Because three of the four factors weighed against a finding of competition, CNG argues, for reasons substantially similar to those of the defendant, the Commission reasonably concluded there was no reasonable degree of overlap in competition between the imports from Canada and Mexico. Further, CNG asserts, plaintiffs’ argument that the subject imports from Mexico and Canada do compete is without merit. Specifically, CNG states the statute does not require, as plaintiffs appear to contend, that the Commission consider whether the imported products will compete with each other at some point in the future. Rather, CNG argues, the statute focuses on whether the imports compete. Such a requirement focuses the analysis on the level of competition at the stage of development in which the subject merchandise is imported. Alternatively, CNG argues, even if the statute did not require the Commission to consider competition in terms of the condition of the imports at importation, there is nothing within the statute which would forbid the ITC from considering competition at that time. Thus, CNG contends, the Commission did not commit legal error in choosing not to consider future competition between the subject imports. CNG additionally asserts the plaintiffs’ argument concerning finished and unfinished products is without merit. Specifically, CNG asserts that the comparison to which plaintiffs refer, primarily the Pipe Fittings case, involves a transformation process which is relatively simple, adds relatively little value, and can be accomplished in a fairly short period of time. By contrast, CNG contends, the process for transforming stockers into fed cattle involves a substantially longer and more complicated process. The process for transforming stockers into fed cattle nearly doubles the weight and value of the cattle. Moreover, defendant-intervenor argues, the companies which purchase the semifin-ished products in this case differ from those in Pipe Fittings. Whereas in Pipe Fittings the same companies that purchased semifinished pipe fittings also produced the finished merchandise, here, CNG alleges, the companies which purchase the Mexican stockers do not generally sell the finished product in competition with slaughter-ready cattle from Canada. Rather, the Mexican stockers are sold to fed lots which in turn usually sell the cattle to slaughterhouses in competition with imports from Canada. Thus, CNG argues, it was reasonable for the Commission to conclude the cattle in this case were not analogous to the pipes in the Pipe Fittings case. Defendant-intervenor further argues the Commission’s decision to treat all cattle as one domestic like product did not require it to treat all cattle as fungible in its cumulation determination. As a matter of law, defendant-intervenor argues, the Commission’s like product determination cannot dictate the result of the cumulation analysis as the like product analysis is based upon a different statute and purpose than the cumulation analysis. Moreover, CNG argues the Commission’s decision was entirely consistent in that it found stockers were not interchangeable with fed cattle in its like product analysis as well as its cumulation analysis. CNG additionally argues the confusion between Idaho and Indiana in the Commission’s staff report was at worst harmless error. In support of its argument, CNG states virtually all Mexican cattle imported in the United States were destined for four states (i.e., Texas, New Mexico, California, and Arizona) whereas less than one percent of the cattle imported from Canada were shipped to Texas, New Mexico, California, and Arizona. Such evidence supports, CNG argues, the Commission’s finding there was only a limited degree of geographic overlap. CNG further argues the fact that subject imports from Mexico and Canada were simultaneously present in the U.S. market does not, by itself, require cumulation. As the Commission must consider all four factors in determining whether subject imports compete with each other, CNG argues it would not be reasonable for the Commission to depart from established practice and give undue weight to only one factor. Consequently, the Commission’s decision that the subject imports did not compete with each other was reasonable. CNG’s final argument is that the Commission correctly determined that there is no reasonable indication that the domestic industry is injured or threatened with material injury by reason of the imports from Mexico. First, CNG argues, the Commission properly concluded that the volume of imports from Mexico was small, declining, and below historical levels as there was evidence on the record to support these findings. Instead of examining a small window of time, as the plaintiffs argue, CNG contends the Commission properly considered overall trends of imports from Mexico. Such an analysis, CNG asserts, was appropriate given the low level of imports in 1996 following an extremely high level of imports in 1995 due to a drought in Mexico. Consequently, CNG argues, the small increase in imports from Mexico in 1997 was a move towards more normal levels rather than an indication of injury to the U.S. industry. Second, CNG .argues the Commission properly concluded that imports from Mexico were too small to have an effect on price. In contrast to plaintiffs’ argument that the Commission failed to consider the price-sensitive nature of the cattle industry, CNG contends the Commission specifically considered whether the commodity nature of the industry might magnify the price effects of the Mexican imports. Based on evidence on the record, CNG asserts, the Mexican imports were too small to have a meaningful effect on prices, even given a commodity market in which relatively small volumes have significant effects on price. Further, CNG argues plaintiffs’ contention that the Commission’s decision incorrectly relied on the absence of evidence of underselling by imports from Mexico misses the point. According to CNG, when analyzing the price effects of imports from Mexico, the Commission found no other evidence suggested the imports from Mexico had affected U.S. prices. Such a finding, CNG contends, was important here because there was no evidence at all that the imports from Mexico affected U.S. prices. CNG also contends plaintiffs’ allegation that the Commission improperly considered limited years for price trends is without merit. The Commission only focused on the U.S. prices during 1996-1998 because these were the only years within the period of investigation in which the imports from Mexico increased. This period, then, is the only relevant period to examine when analyzing whether imports from Mexico were depressing the U.S. market prices. As there was evidence to support the Commission’s finding that the U.S. prices did not decrease while the imports from Mexico increased, CNG argues, there was a rational basis for the Commission’s finding that imports from Mexico did not affect U.S. market prices. Third, CNG contends the ITC correctly concluded that imports from Mexico did not have an adverse impact on the U.S. industry as the ITC’s decision was based on evidence that there was a low volume and decreasing share of subject imports from Mexico. Moreover, CNG argues plaintiffs’ assertion that the Commission’s analysis of the impact of imports from Mexico was flawed because it did not accept plaintiffs’ models which calculated that imports from Mexico had caused a 3.7 percent decline in U.S. feeder price, is without merit. According to CNG, the Commission did not have to accept plaintiffs’ models; moreover, the evidence showed the prices for the type of cattle imported from Mexico had increased. Thus, according to CNG, the plaintiffs’ model was inconsistent with evidence on the record, and plaintiffs’ suggestion that the ITC should accept the theoretical modeling is wrong. Finally, CNG argues there was no reason to believe the Commission would have discovered contrary evidence in the final investigation, and plaintiffs fail, in their brief, to identify contrary evidence that would likely arise. Thus, according to CNG, whatever additional information which might have been found would not have disturbed the Commission’s determination. Standard of Review This Court shall hold unlawful any preliminary determination, finding, or conclusion made by the Commission which it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 19 U.S.C. § 1516a(b)(1)(A) (1994). For this purpose, the Court must determine whether there is a “ ‘rational basis in fact’ ” for the ITC’s determination. See Torrington Co. v. United States, 16 CIT 220, 221, 790 F.Supp. 1161, 1165 (1992) (quoting American Lamb, 785 F.2d at 1004 (quoting S. Rep. No. 249, reprinted in 1979 U.S.C.C.A.N. 381, 638)). The ITC, when making its determination, must decide whether there is a reasonable indication for finding “(1) the record as a whole contains clear and convincing evidence that there is no material injury or threat of such injury; and (2) no likelihood exists that contrary evidence will arise in a final investigation.” American Lamb, 785 F.2d at 1001. In determining whether the ITC’s approach is in accordance with law, this Court applies the two-step analysis articulated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron requires the reviewing court to give effect to the intent of Congress if Congress has directly spoken to the precise question at issue and Congress’s intent is clear. See id. If, however, Congress has not spoken directly to the issue at bar, the question for the court is whether the agency’s interpretation of that issue “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. In reviewing the ITC’s interpretation, this Court “ ‘may reject ... that [which] contravenes clearly discernible legislative intent,’ but ‘[the Court’s] role when that intent is not contravened is to determine whether the agency’s interpretation is “sufficiently reasonable.” ’ ” Grupo Indus. Camesa v. United States, 853 F.Supp. 440, 442 (CIT 1994) (quoting American Lamb, 785 F.2d at 1001 (citations omitted)). The Court need not conclude the Commission’s construction is the only interpretation the agency could have adopted, or even the interpretation the Court would have reached if the question initially had arisen in a judicial proceeding before it. See Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778. Rather, the focus of the inquiry is whether the Commission’s interpretation of the statute is sufficiently reasonable to be accepted by the Court. See FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981). Discussion A. Clear and Convincing Standard Plaintiffs assert that the Commission’s preliminary determination was arbitrary, capricious, an abuse of discretion, and not in accordance with law because it was not supported by clear and convincing evidence in the record. Plaintiffs contend, in part, that the Commission erred by making its determination based on contradictory data in the record and acted arbitrarily in ignoring evidence clearly supporting an affirmative determination. It has long been established that in applying the statutory standard for making a preliminary determination regarding material injury or threat of material injury, the Commission may weigh all evidence before it and resolve conflicts in the evidence. See, e.g., American Lamb, 785 F.2d at 1002-04. In asserting that the evidence supporting the Commission’s determination is not clear and convincing because of the conflicting evidence, plaintiffs, in essence, request the Court to reweigh the evidence. The Court cannot substitute its judgment, however, for that of the Commission. Rather, its role in reviewing a decision by the ITC is to ascertain whether there was a rational basis for the determination. See, e.g., Torring-ton, 790 F.Supp. at 1167 (citing American Lamb, 785 F.2d at 1004). The Court may only reverse the ITC’s determination if there is a “clear error” of judgment and where there is “no rational nexus between the facts found and the choices made.” See Connecticut Steel Corp. v. United States, 852 F.Supp. 1061, 1064 (CIT 1994) (quotations and citations omitted). B. Cumulation In making its preliminary injury determination, the ITC “shall cumulatively assess” the volume and effect of imports of the subject merchandise from all countries for which petitions are filed and/or investigations are self-initiated by the administering authority on the same day if such imports “compete with each other and with domestic like products in the United States market.” 19 U.S.C. § 1677(7)(G)(i). In order to satisfy this provision, the ITC must, in part, determine that “a ‘reasonable overlap’ in competition” exists between the imports from the different countries. Wieland Werke, AG v. United States, 13 CIT 561, 563, 718 F.Supp. 50, 52 (1989) (quoting Granges Metallverken AB v. United States, 13 CIT 471, 475, 716 F.Supp. 17, 22 (1989)). In evaluating whether imports from different countries compete with each other, the ITC relies on the following four-factor test: (1) the degree of fungibility between the imports from different countries; (2) the presence of sales or offers to sell imports from different countries in the same geographic markets; (3) the existence of common or similar channels of distribution for imports from different countries; and (4) whether the imports are simultaneously present in the market. See, e.g., Id. at 52; Fundicao Tupy S.A. v. United States, 12 CIT 6, 10-11, 678 F.Supp. 898, 902 (1988). “While no single factor is determinative, and the list of factors is not exclusive, these factors are intended to provide the Commission with a framework for determining whether the imports compete----” Goss Graphics Sys., Inc. v. United States, 33 F.Supp.2d 1082, 1086 (CIT 1998) (citations and quotation omitted). 1. Competition One of plaintiffs’ core arguments appears to be that the ITC’s requirement that subject imports be directly interchangeable at importation in order to cu-mulate the subject imports is contrary to statute and Congressional intent. The plaintiffs’ contention, however, is without merit. The plaintiffs’ concern essentially involves a question of statutory interpretation. In resolving questions of statutory interpretation, Chevron requires this Court first to determine whether the statute is clear on its face. If the language of the statute is clear, then this Court must defer to Congressional intent. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is unclear, however, then the question for the Court is whether the agency’s answer is based on a permissible construction of the statute. See id. at 843, 104 S.Ct. 2778; see also Corning Glass Works v. United States Int’l Trade Comm’n, 799 F.2d 1559, 1565 (Fed.Cir.1986) (finding the Commission’s definitions must be “reasonable in light of the language, policies and legislative history of the statute.”). Here, the statutory provision regarding cumulation is unclear. The statute provides, in. relevant part, that the Commission shall “cumulatively assess the volume and effect” of the imports of the subject merchandise from all countries if “such imports compete with each other and with domestic like products” in the U.S. market. 19 U.S.C. § 1677(7)(G)(i). To include imports in the cumulation equation, the statute requires, among other things, that they “compete with” each other and domestic like products, but it fails to define that phrase. See Chaparral Steel Co. v. United States, 901 F.2d 1097, 1101 (Fed. Cir.1990). Accordingly, the provision cannot be said to have a plain meaning. See id. What Congress intended by the .phrase “competes with” is not immediately clear from the legislative history of this provision, first added to the law in the Trade and Tariff Act of 1984, Pub.L. No. 98-573, § 612, 98 Stat. 2948, 3033. See id. The Court must, therefore, consider the purpose for enacting the cumulation provision to discern its intended meaning. See id. Cumulation was mandated “to eliminate inconsistencies in Commission practice and to ensure that the injury test adequately addressed simultaneous unfair imports from different countries.” House Comm, on Ways and Means, Trade Remedies Reform Act of 1984, H.R. Rep. No. 98-725, at 37 (1984), reprinted in 1984 U.S.C.C.A.N. 5127, 5164 (emphasis added). The legislative history’s only explicit guidance is that cumulation is designed to take into account “simultaneous unfair imports.” Id. Because neither the statutory language nor the legislative history conclusively establishes the intended time frame in which the imports are to be considered for competition, the Court assesses the agency’s interpretation of the provision to determine whether the agency’s interpretation is reasonable and in accordance with the legislative purpose. In making its competition determination, the Commission found there was insufficient evidence on the record to support a finding of competition between the subject imports from Mexico and Canada in part because when the subject imports were brought into the United States, they were imported at different stages of development. See Live Cattle from Mexico at 12. The Commission, therefore, appears to have considered whether the subject imports “competed with” one another at the moment of importation. Although the statute does not specifically direct the ITC to consider whether the products at issue compete at importation, the statute does require that the Commission determine whether the “imports compete.” As products are U.S. imports when they are “brought in[to] [the United States] from an outside source,” Webster’s Third New International Dictionary 1135 (Phillip Babcock Gove, ed., Merriam-Webster, Inc., 1986) (1961), consideration by the ITC of whether subject imports compete at importation appears to be a reasonable interpretation of the statute. Certainly nothing within the statute precludes the ITC from considering competition in terms of the condition of the products at importation. Accordingly, this Court defers to the agency’s interpretation of the statute. See Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978) (agency’s interpretation of the statute under which it operates is entitled to some deference). 2. Application of four-factor competition test a. Fungibility i. Fungibility as a factor of competition Plaintiffs argue the ITC misconstrued the cumulation provision and equated “fungibility” with “competition.” Plaintiffs’ argument appears, in part, to challenge the ITC’s use of “fungibility” as a factor in assessing whether the subject imports compete with each other. This Court, however, has consistently affirmed the Commission’s practice of considering four factors-one of which is the degree of fungibility-to assess whether subject imports compete with each other. See, e.g., Goss Graphics, 33 F.Supp.2d at 1086; Wieland Werke, 718 F.Supp. at 52; United States Steel Group v. United States, 18 CIT 1190, 1199-1200, 873 F.Supp. 673, 685 (1994); United Eng’g & Forging v. United States, 15 CIT 561, 582, 779 F.Supp. 1375, 1393 (1991); Fundicao Tupy, 678 F.Supp. at 902. Thus, to the extent plaintiffs challenge the ITC’s use of fungibility in its determination of whether the subject imports compete with each other, this Court holds the ITC’s use of fungibility as a factor in determining whether the subject imports competed with each other is reasonable and should not be disturbed. ii. Like products and competition As previously noted, the Commission found the subject imports from Mexico and Canada were like products but found the products did not compete, in part, because they were not sufficiently fungible. R-CALF now uses these findings in an attempt to impugn the Commission’s non-cumulation determination. Plaintiffs first allege the ITC’s use of a different and more rigorous standard of interchangeability for its cumulation analysis than for its like product analysis is arbitrary and warrants reversal of the ITC’s determination. Plaintiffs also argue it was arbitrary for the Commission to give different weight to the finding of a lack of interchangeability in the like product and cu-mulation analyses. Plaintiffs’ first argument fails because it overlooks the importance of context. The analysis of interchangeability for the purposes of cumulation may vary from that for like product. See R-M Indus., Inc. v. United States, 18 CIT 219, 226 n. 9, 848 F.Supp. 204, 210 n. 9 (1994) (finding analysis of substitutability may vary for purposes of like product analysis as compared with analysis of cumulation and material injury), cited in Acciai Speciali Terni, S.p.A. v. United States, 19 CIT 1051, 1068, 1995 WL 476719 (1995). Such a situation would not necessarily render inconsistent findings regarding interchangeability for the purposes of cumulation and like product analyses arbitrary, capricious, or not in accordance with law. To the extent plaintiffs’ second argument implies the ITC must always find like products compete with each other for the purposes of cumulation, the plaintiffs’ argument also must fail. A finding by the ITC of a like product does not control whether the ITC finds competition between the subject imports for the purpose of cumulation. See generally BIG Corp., 964 F.Supp. at 398 (stating like product and cumulation are functionally different inquiries because they serve different statutory purposes). Rather, the ITC must conduct like product and cumulation analy-ses separately using the factors relevant to each determination. As farther elaborated below, the Court finds the ITC’s cumulation determination is neither arbitrary nor capricious and is otherwise in accordance with law. b. Geographic overlap Plaintiffs contend the Commission misidentified the states in which the subject imports overlapped. Specifically, plaintiffs state the ITC “committed error in finding that imports of Mexican and Canadian cattle overlapped in Indiana rather than Idaho.” (Plaintiffs’ Reply at 4.) Although plaintiffs acknowledge that the ITC admits it committed this error, plaintiffs assert the error was not harmless as such evidence shows “Mexican cattle were present near the U.S.-Canadian border with Canadian cattle, just as Canadian cattle were present near the U.S.-Mexican border with Mexican cattle.” (Plaintiffs’ Reply at 4.) The Court does not agree with plaintiffs’ assertion