Full opinion text
MEMORANDUM OPINION AND ORDER MUSGRAVE, Judge. Plaintiffs, Suramerica de Aleaciones Laminadas, C.A. (“Sural”), Conductores de Aluminio del Caroni, C.A. (“Cabelum”), Industria de Conductores Eléctricos, C.A. (“Iconel”) and Corporación Venezolana de Guayana (“CVG”) seek review of the determination of the U.S. Department of Commerce, International Trade Administration (“Commerce” or “ITA”) resulting in antidumping duties assessed against them. Plaintiffs also seek review of the determination of the U.S. International Trade Commission (the “Commission” or “ITC”) that an industry in the United States is threatened with material injury by reason of imports from Venezuela of electrical conductor aluminum redraw rod (“EC rod” or “rod”), which the Department of Commerce has determined are being subsidized and sold at less than fair value (“LTFV”). The administrative determinations made by Commerce under review are Certain Electrical Conductor Aluminum Redraw Rod from Venezuela (Final Affirmative Antidumping Duty Determination); 53 Fed. Reg. 24755 (June 30,1988) and Certain Electrical Conductor Aluminum Redraw Rod from Venezuela (Final Affirmative Countervailing Duty Determination), 53 Fed.Reg. 24763 (June 30, 1988). The administrative determination made by the ITC is based upon the record developed in the following investigations: Certain Electrical Conductor Aluminum Redraw Rod from Venezuela, Invs. Nos. 701-TA-287 (Final) and 731-TA-378 (Final), USTIC Pub. 2103 (Aug.1988). Background The relevant industry consisted of seven U.S. producers of EC.rod and wire and cable at the time of the petition: Alcan Aluminum Corp. (“Alcan”), Aluminum Company of America (“Alcoa”), Essex Wire and Cable (“Essex”), Kaiser Aluminum and Chemical Corp. (“Kaiser”), Noranda Aluminum, Inc. (“Noranda”), Reynolds Metal Company (“Reynolds”) and Southwire Company (“Southwire”). Of these seven, Kaiser and Noranda left the wire and cable business during the period of investigation, leaving a total “industry” of five producers. Staff Report, ITC Doc. 21, List 2, at A-29-A-81. On July 14, 1987, Southwire filed petitions with Commerce and the ITC alleging that electrical conductor redraw rod imported into the United States from Venezuela was being subsidized and sold at less than fair value. Southwire further alleged that sales of this product were causing material injury or a threat of material injury to an industry in the United States. Plaintiffs, Sural, Cabelum, and Iconel challenged the final determination of the ITC pursuant to 19 U.S.C. § 1673(2)(A)(ii) (1982) that an industry in the United States is threatened with material injury by reason of imports of EC Rod from Venezuela, and the determination of the ITA of sales at less than fair value pursuant to 19 U.S.C. § 1673d(a) (1982). This Court held that Southwire did not have standing to file its petition on behalf of the industry, because Southwire was not a majority producer in the industry and no other company in the industry supported the petition, and because one major domestic producer, along with the union representing EC rod workers and the Aluminum Trade Council, challenged the petition. See Suramerica de Aleaciones Laminadas, C.A. v. United States, 14 CIT 560, 746 F.Supp. 139 (1990). The Court of Appeals for the Federal Circuit reversed, holding that Commerce could proceed with investigations based on the Southwire petition so long as the majority of industry did not affirmatively oppose it. See Suramerica de Aleaciones Laminadas, C.A. v. United States, 14 CIT 560, 746 F.Supp. 139 (1990), rev’d and remanded, 966 F.2d 660 (Fed.Cir.1992). The case is now before this Court on its merits, pursuant to plaintiffs’ original motion for review of administrative determinations upon the agency record under Rule 56.1. In challenging the affirmative determinations and the outstanding orders, plaintiffs assert the existence of several procedural and substantive flaws in the administrative proceedings and resulting determinations below. Plaintiffs allege that the finding by the ITC of a threat of injury to United States producers of like products from imports of EC rod from Venezuela was “based in part on last-minute allegations submitted in violation of the Commission’s Rules and without opportunity for rebuttal.” Plaintiffs’ Memorandum in Support of Motion for Judgment on the Administrative Record (“Plaintiffs’ Brief’) at 39. Plaintiffs also argue that the affirmative threat-of-injury determinations were “erroneous as a matter of law” in that the supporting factual findings allegedly are conjectural. Id. at 43. See 19 U.S.C. § 1677(7)(F)(ii). Additionally, plaintiffs argue that Commerce’s “finding that Sural’s sales were made at less-than-fair-value prices was incorrect” in that Commerce improperly rejected information supplied by Sural, relying instead on “best information available” (“BIA”), and made “additional clerical and factual errors.” Id. at 70-84. Finally, plaintiffs argue that the countervailing duty determination was unjust because the net effect of the subsidy — a preferential exchange rate— did not raise plaintiffs’ mandatory exchange rate above the free market rate. The Court need not decide the propriety of Commerce’s determination because this Court rejects the ITC’s threat of injury finding. This case is remanded to the ITC for a further explanation of how it arrived at its conclusions in the ITC Final Report; or in the alternative, a rescission of its finding of threat of injury. Standard of Review In reviewing injury, antidumping, and countervailing duty investigations and determinations, this Court must hold unlawful any determination unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(l)(B) (1982). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed 456 (1951) (quoting Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131, 141 (1966) (citations omitted); See also, Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). The court may not substitute its judgment for that of the agency when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (citing Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465), aff'd sub nom., Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985). Moreover, substantial evidence supporting an agency determination must be based on the whole record. See Universal Camera Corp., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). The “whole record” means that the court must consider both sides of the record. It is not sufficient to examine merely the evidence that sustains the agency’s conclusion. Id. In other words, it is not enough that the evidence supporting the agency decision is “substantial” when considered by itself. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Universal Camera Corp., 340 U.S. at 478, 488, 71 S.Ct. at 459, 465. The precise way in which courts review agency findings cannot be imprisoned within any form of words; new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment. Universal Camera Corp., 340 U.S. at 489, 71 S.Ct. at 465. Threat of Material Injury The Commission makes its determinations regarding the existence of a threat of material injury to domestic industry based on the record developed in the subject investigation pursuant to sections 705(b) and 735(b) of the Tariff Act of 1930, 19 U.S.C. § 1671d(b) and § 1673d(b). This Court must be especially vigilant of the threat of material injury determination mechanism because the Commission’s inquiry by its very nature endeavors to predict events that have not yet occurred. Cf. Rhone Poulenc, S.A. v. United States, 8 CIT 47, 50, 592 F.Supp. 1318, 1321 (1984) (threat of injury arises in an area of the law which is far from “cut and dry”). In order to make a final affirmative determination in its injury investigation, the ITC must find that an industry in the United States: (1) is materially injured or (2) is threatened with material injury or (3) the establishment of an industry is materially retarded, by reason of the imports being sold or likely to be sold at LTFV. See 19 U.S.C. § 1673d(b)(l) (1982). Any determination by the Commission that an industry in the United States is threatened with material injury shall be made on the basis of evidence that the threat of material injury is “real and that actual injury is imminent.” 19 U.S.C. § 1677(7)(F)(ii) (1982 & Supp.1992); Cf. Republic Steel Corp. v. United States, 8 CIT 29, 41, 591 F.Supp. 640, 650 (1984) (“The essence of a threat lies in the ability and incentive to act imminently.”). Moreover a determination “may not be made on the basis of mere conjecture or supposition.” 19 U.S.C. § 1677(7)(F)(ii) (1982 & Supp.1992). The statute sets forth a series of factors the Commission is to consider in analyzing the issue of threat of material injury. 19 U.S.C. § 1677(7)(F). Among relevant factors in this section are the following: (I) if a subsidy is involved, such information as may be presented to it by the administering authority as to the nature of the subsidy (particularly as to whether the subsidy is an export subsidy inconsistent with the Agreement), (II) any increase in production capacity or existing unused capacity in the exporting country likely to result in a significant increase in imports of the merchandise to the United States, (III) any rapid increase in United States market penetration and the likelihood that the penetration will increase to an injurious level, (IV) the probability that imports of the merchandise will enter the United States at prices that will have a depressing or suppressing effect on domestic prices of the merchandise, (V) any substantial increase in inventories of the merchandise in the United States, (VI) the presence of underutilized capacity for producing the merchandise in the exporting country, (VII) any other demonstrable adverse trends that indicate the probability that the importation (or sale for importation) of the merchandise (whether or not it is actually being imported at the time) will be the cause of actual injury---- Further guidance is provided by section 1677(7)(A)-(C) regarding material injury. Material injury means harm which is not inconsequential, immaterial, or unimportant. 19 U.S.C. § 1677(7)(A) (1982 & Supp.1992). “The factors required to be considered in a final determination of present injury must be reviewed in the threat of injury context to determine the imminence of actual injury.” Rhone Poulenc, 592 F.Supp. at 1323. Accordingly, the Commission assesses the volume and consequent impact of imports, as well as the condition of the affected domestic industry. See Report of the Commission (“Final Report”), ITC Doc. 115, List 1, at 5; 19 U.S.C. § 1677(7)(C) (1982 & Supp.1992). Finally, the absence of any indicia of present injury is not considered conclusive that threat of injury does not exist. Rhone Poulenc, 592 F.Supp. at 1323-24 (citing H.Rep. No. 317, 96th Cong., 1st Session 47 (1979)). Moreover, the “threat with regard to one or two factors may so persuade the Commission of threat of injury that the absence of one or another will be no bar to a finding of the requisite threat.” Rhone Poulenc, 592 F.Supp. at 1324; See 19 U.S.C. § 1677(7)(E)(ii) (“The presence or absence of any factor which the Commission is required to evaluate ... shall not necessarily give decisive guidance with respect to the determination by the Commission____”) In fact, section 1677(7)(E)(ii), entitled “Standard for determination,” was included under the sub-section concerned with material injury and not under the sub-section regarding threat of material injury found in paragraph (F) of 19 U.S.C. § 1677(7) (“Basis for Determination”). This Court could hold that the liberal standard for determination of material injury does not apply to threat cases. The Court believes, however, that the general principle that the Commission need not come to an affirmative determination on each and every potential factor listed for consideration is equally sound in threat of injury cases. Nonetheless, the Court need not show that each Commission finding on each factor is not based on substantial evidence so long as the Court finds that the sum total of the Commission’s findings do not rise to the level of substantial evidence of injury or threat of injury. Analysis The Final Report notes that “the statutory factors deal primarily with what is likely to occur with respect to imports. In order to determine whether that projection about future imports ‘threatens’ the domestic industry, it must be analyzed in the context of the condition of the industry.” Final Report, List 1, at 16 n. 46 (noting comments of Commissioner Rohr). The Court agrees. Unfortunately, the Commission did not assess the industry as a whole, and failed to take into account the perspective of industry leaders. Instead the Commission adopted the point of view of a sole company, South-wire, that alone stood to gain an increasingly firm grip on the domestic EC rod market as other U.S. producers sealed back. The extraordinary circumstances of this petition merit more than the cursory mention they received in the Final Report. Indeed, such an inquiry is indispensable if the condition of the domestic industry is to be accurately assessed — an assessment critical to an accurate determination of threat of injury, as the Commission majority itself pointed out. As discussed infra, when the record is viewed as a whole, it does not substantially support the conclusion that the domestic industry is threatened by — or in the Commission’s words is “vulnerable” to — Venezuelan imports of EC rod. Final Report, List 1, at 11. On the contrary, the “industry [is] dynamic, with a recent history of retrenchment as a result of economic conditions having nothing to do with imports.” Final Report, List 1, at 35 (Views of Commissioner Brunsdale, Dissenting). In assessing the condition of the domestic industry, it is helpful to begin with a description of the product. Electrical conductor (EC) aluminum redraw rod, is a solid round product that is long in relation to cross section, and 0.375 inch or greater in diameter. EC rod is an intermediate product between primary aluminum and finished aluminum wire and cable. Aluminum wire and cable is used mainly to transmit electric current over long distances. Because aluminum wire and cable has significant advantages over the only other economically viable metal conductor of electricity (copper), there is at present no adequate substitute for the finished product. The domestic EC rod manufacturers are predominantly vertically integrated producers. In addition to EC rod mills, they typically operate aluminum smelters and/or aluminum wire and cable production facilities, and a number of them also produce other aluminum products. The value added in the production of these other aluminum products tends to be higher than in the production of EC rod. In the chain of production, hot raw aluminum is poured from the smelter to the rod mill for rolling before it has a chance to cool. The hot metal is water cooled and then squeezed through rollers to form the finished EC rod. Some manufacturers who are unable to obtain smelted hot aluminum are equipped to reheat cold aluminum to supply their EC rod mills. EC rod is then drawn to produce electrical cable or wire. During the period of electrification of the United States, the demand for aluminum wire and cable and for the EC rod from which it is made was strong. The electrification process was substantially completed in the early 1980s. Since then, the demand for aluminum wire and cable has been limited to the replacement and repair of existing equipment and secondary uses such as housing and construction. As early as 1981, U.S. aluminum companies began a systematic shift from the production of EC rod and aluminum wire and cable to the production of other aluminum products. Since then, and with greater frequency since 1984, EC rod mills and aluminum wire and cable production facilities have been idled or sold. During the 1984-87 period, the annual production capacity in the domestic EC rod industry declined from 519,842 short tons to 466,920 short tons, and total apparent domestic annual consumption decreased from 408,295 short tons to 346,842 short tons. The decline in capacity reflects the net of EC rod mill expansions and closures during this period, and the decline in apparent consumption reflects the decrease in demand for we and cable. Significantly, these statistics indicate that the decline in capacity began before the 1985 increase in Venezuelan imports of which petitioner complains. The record does not contain substantial evidence that the Venezuelan imports have affected this trend. Accordingly, no material injury was found by the ITC for this period. Indeed, non-petitioning domestic companies have cooperated with the Venezuelans, selling off excess U.S. capacity to the Venezuelans as the domestic producers sealed back. In regard to the condition of the U.S. industry, the ITC in its report found that production of aluminum rod declined from 363,275 tons in 1984 to 279,173 tons in 1986 and increased to 288,785 in 1987. Moreover, the ITC noted that interim production in 1988 was also increasing, with the caveat that interim figures could be very misleading. The ITC report finds that “performance is still substantially below 1984 levels ...” and that consequently the domestic EC rod industry remains- vulnerable to the threat of unfairly traded EC rod from Venezuela. The ITC never properly explained why 1984 should be the benchmark of health in the industry throughout the period of investigation. According to the record, the high level of production in 1984 was based on several misconceptions on the part of the industry, including the suppositions that demand would increase and the cost of aluminum would continue to rise. This in turn led to a market “crash” in 1985 and the EC rod producers began to respond more realistically to actual conditions in the industry thereafter. 1984 was not the absolute measure of health in this retracting industry but rather a cyclical high in a decade of long-term retraction of domestic producers from the Industry. When the Venezuelan imports are analyzed in view of the longer term economic trend through 1987, their impact, if any, is far less dramatic. During 1983, as prices were strengthening, reflecting stronger demand, producers increased capacity utilization to meet the then current demand and the then current forecast of higher demand. The trend towards higher demand, however, did not continue. Producers continued making metal in spite of lower demand. Consequently, inventories rose and prices fell. For example, the Metals Week market price fell from the 80 cent range at the end of 1983 to the mid 40 cent range toward the end of 1984. At this point, the U.S. industry, faced with severe losses, accelerated rationalization. Production was cut back drastically and capacity utilization was reduced on a worldwide basis. Subsequently, excess inventories have been consumed and demand outpaced renewed production. Additionally, integrated companies have logically chosen to allocate scarce smelted hot aluminum to products with higher profit margins than EC rod; that entailed abandoning EC rod capacity. No single U.S. company, including petitioner, has contended that it has the ability or desire to satisfy U.S. demand today. The record shows that U.S. producers and purchasers turned to the next logical source of supply — the Venezuelans. The cause of the decline in production capacity is clearly linked to the decrease in demand for aluminum wire and cable. Historically, over two-thirds of EC rod production has been captive production for use in wire and cable facilities owned by the same company that operated the rod mill. Such intracompany shipments decreased by 27 percent volume units from 1984 through 1987, reflecting the contraction in demand for wire and cable in the United States and the discontinuance of wire and cable manufacturing by some of the EC rod manufacturers. In sharp contrast, domestic shipments of EC rod to unrelated purchasers increased by 34 percent during the period. These data indicate that the decline in production of EC rod is directly related to the decrease in demand for wire and cable. Despite the decrease in demand for wire and cable, the process of rationalization engaged in by the U.S. industry before the Venezuelan imports impacted upon the domestic market gave rise to a shortage of EC rod in the mid and late 1980s. Not only were the Venezuelans chosen as the most economical source of EC rod to make up for the shortfall, but the very company that now brings the petition in this case, Southwire, the sole petitioner, was responsible for facilitating and managing the majority of those initial Venezuelan imports. The record shows the health of the rod industry since the initiation of the petition is in part due to the overall boom that the aluminum industry has been enjoying since 1986. Aluminum prices have increased from 55 cents in early 1987, to the $1.20 range by the termination of the investigation. Prices went up because rising demand caught up with the shrinking production capacity resulting from the industry’s rationalization of capacity in the early and mid 1980s. The financial data relating to the EC rod industry show a decline in most financial indicators during 1985, followed by consistent upward movement thereafter. Gross profits and operating income are difficult to assess because of the predominance of intracompany transfers in the data. Vastly different results are achieved depending on whether the integrated producers value primary aluminum and EC rod captive sales at cost, or, in the alternative, whether they value primary aluminum and EC rod at market prices. The financial data in this record, whether cost or market analysis is used, indicates that the EC rod industry has been consistently profitable. The record reflects that the divergence between the two accounting methods of computation is the result not of wide fluctuations in the market price for EC rod, but of the fact that “[t]he metal value [of primary aluminum] generally accounts for over 85 percent of the total selling price of the rod and therefore fluctuations in this value strongly influence the final price. During the period of investigation, there has been a wide swing in the metal value.” Staff Report, List 1, at A-54. This economic reality undermines several of the conclusions that the Commission relied upon to bolster its affirmative finding of a threat of injury to the U.S. industry. First, the ITA concluded that the Venezuelan rod was sold at LTFV based in part on low prices in five non-consecutive quarters out of nine quarters. The ITC used that data as evidence of price suppression in the domestic market. ITC Final Report, List 1, at 15. In the other four quarters, the Venezuelan rod came in at a higher price, resulting in an average sale at less than fair value over the nine quarters of only 0.8 percent. The price comparison by quarter is inconclusive with this narrow differential. See Tianjin Machinery Import & Export Corp. v. United States, 16 CIT —, —, Slip Op. 92-214, at 13, 1992 WL 406623 (December 1, 1992) (underselling in 15 of 30 quarters is inconclusive). These statistics are not substantial evidence of price suppression, one of the statutory factors the ITC was required to consider and in fact relied upon in making its determination. 19 U.S.C. § 1677(7)(F)(i)(IV). Second, the Commission’s conclusion that the Venezuelan companies could easily obtain the needed primary aluminum on the world market is not supported by substantial evidence, or any evidence for that matter. Commissioner Cass, in his Additional Views, found that “[sjupplies of primary aluminum are in short supply, as evidenced by the rapid increase in both spot and near-term futures prices of primary aluminum on world markets throughout the period within which Commerce determined unfair trade practices to exist.” Final Report, List 1, at 27, citing Staff Report at A-57. Meanwhile, petitioners concede, indeed contend for the purposes of LTFV, that there is a very small profit margin in the sale of EC rod. Therefore, all extraneous costs of production must be kept as low as possible if a company is to remain competitive. That is why most domestic producers are integrated. That way the aluminum travels the shortest possible distance from the smelter to the EC rod mill. Obtaining cold metal on the world market then reshipping the processed rod to the United States would presumably add another layer of freight costs to Venezuelan production. Despite Southwire’s assertions that freight costs do not become a significant element of the fabrication adder unless the shipment is coast to coast, General Electric (“GE”) reported that Southwire itself, because of freight cost considerations, was interested in selling EC rod only to GE’s Fort Wayne plant. “In particular, Southwire has declined to supply GE’s Shreveport facility and is unwilling to divert more than 20 percent of its GE commitment to North Carolina locations.” Brief of Amicus Curiae General Electric Company in Support of the Plaintiffs’ Motion for Judgment Upon the Administrative Record at 4-8. Southwire’s own conduct contradicts its contention that a difference of 0.02 percent in the price of cable (constructed principally from EC rod) is significant. See Post Hearing Brief of Southwire at 7, n. 18. Such a narrow margin for contract awards would mean that freight costs are always significant. Further evidence on the record indicates that the availability of raw aluminum on the world market was illusory. Smelters are presently operating at close to or in excess of 100 percent of their capacity world-wide. Smelting of raw aluminum is necessary before the metal can be fashioned into EC rod. Whether the Venezuelan companies use hot or cold metal, they can only use as much as is smelted. The Venezuelan companies contend that they do not have the luxury to ship primary aluminum half way around the world and the ITC has not offered any evidence that they have in the past. To the contrary, Sural has [ ] and has offered an explanation for why they would be extremely unlikely to do so imminently. See Plaintiffs’ Memorandum in Support of Motion for Judgment on the Administrative Record at 49-51; Staff Report, List 2, at A-19; id., ITC Doc. 29J, List 2, at 23 [ ]; id. at 29 [ ]; Staff Report, List 2, at A-19-A-20 [ ] The fact the Venezuelans have turned to increased smelting capacity to the complete exclusion of world market purchases is evidence that the world market purchases, if possible, were not economically feasible. In fact, six out of seven of the U.S. EC rod producers use molten aluminum from an adjacent smelter for their EC rod production, indicating it is the preferred method of production. As Sural justly points out, “the petitioner never even suggested that Venezuelan EC rod producers could practically obtain increased supplies of aluminum on the world market. It was never an issue. If Sural had any notice that the Commission would consider this issue it would have been able to address the issue and to show that the costs of purchasing aluminum on the world market and importing it into Venezuela are, indeed, prohibitive.” This Court has repeatedly held that a party may not reverse the position it took before the agency and raise contrary arguments on appeal, explaining that “to allow plaintiffs to change their position at this time would deny the Commission the opportunity to review plaintiffs’ arguments during the time period prescribed by statute as well as deprive the other parties of their right to respond to plaintiffs’ position.” Calabrian Carp., v. ITC, 16 CIT -, -, 794 F.Supp. 377 (1992), citing Trent Tube Div., Crucible Materials Corp. v. United States, 14 CIT 386, -, 741 F.Supp. 921, 929 (1990). The same standard applies to the Commission when it raises arguments for the first time in its final reports. Such a position is especially justified in this case where the record is thin with regard to the Commission’s finding and the Commission did not permit rebuttal on the issue. The Court notes that the Commission has compounded the difficulty of the Court’s task in resolving the issue of aluminum supplies by not citing to anywhere in the record to support the Commission’s finding regarding world market supplies in the Final Report; nor has the Commission even raised the issue before the Final Report. Likewise, the Staff neglected to address the world supplies of aluminum and instead focused on smelting capacity. For example, a Staff memorandum rebutted the Venezuelan complaints that supplies of aluminum were difficult to obtain not with the suggestion that the Venezuelans could purchase it on the world market, but that the Venezuelans would soon be increasing their smelting capacity. There is evidence from a variety of sources on the record indicating a severe world-wide shortage of aluminum. Considered with evidence on the record that smelters are working at maximum capacity, this evidence suggests that whatever aluminum (cold metal) is available on world market is quite costly. The added costs of ocean transportation and reheating the aluminum for processing raise further doubts about the viability of obtaining metal on the world market for the Venezuelans. Moreover, even if all these obstacles could be overcome, nothing in the record supports the inference that this world market aluminum would be directed to EC rod production rather than mechanical rod or other higher value-added products. Logically, scarce raw aluminum, when it does become available, will be directed to the most profitable products with the higher value added; the U.S. experience, based on the record, reflects this. The ITC Staff Report notes the same trend for the Venezuelan companies: They are shifting their aluminum resources to higher value-added aluminum products. In addition, much of the planned capacity is to be used for production of mechanical rod. Given their problems purchasing aluminum at home, if purchasing from foreign sources were a viable option, the Venezuelan producers would likely have done so already. The Court finds that there is no substantial evidence in the record that world market supplies of primary aluminum are likely to play a role in feeding the Venezuelans’ increased capacity. Without more primary aluminum, the Venezuelans’ present increased capacity cannot be utilized and therefore does not rise to the level of a “real and imminent” threat of injury to the domestic industry. The ITC did not address the unrebutted evidence on the record of the severe world shortage of aluminum and the U.S. shortage of EC rod. Until this shortage is remedied, a possible increase in Venezuelan imports will serve merely to fill excess demand, not cause injury to the U.S. industry. In other words, U.S. purchasers of EC rod will have to buy EC rod from a source other than the domestic suppliers to satisfy domestic shortages. So far these purchasers, many of them members of the EC rod industry itself, have chosen to buy from Venezuela. On remand, the ITC is instructed to explain what evidence, if any, in the record supports its contention that world market supplies of aluminum are readily and imminently available to the Venezuelan producers. The ITC is invited further to explain why, if these supplies have been available and economically feasible, the Venezuelans have never taken advantage of them — even throughout the period of investigation, when the Venezuelans had significant excess capacity and no material injury was found. Because the ITC raised the question of world supplies of aluminum in a conclusory manner, plaintiffs shall be permitted a rebuttal on remand. In addition to an overview of the domestic industry as a whole, the Court feels compelled, by the peculiar circumstances of this case, to scrutinize the situation of Southwire, the sole petitioner. The Court notes that Southwire, with just [ ] of the U.S. market, is the only U.S. company that appears concerned with potential injury to the U.S. industry — even though a mere check mark on a Commission questionnaire was all that was required of the other U.S. companies to express such concern. Moreover, as the record indicates, Southwire has been operating at peak capacity with no planned expansion and has been enjoying record profits unparalleled in its 37 year history. These indications of the remarkable health of Southwire are unrebutted anywhere in the record. Yet, the very companies “on whose behalf’ Southwire brings this suit are not before the Court and did not support South-wire’s petition. Meanwhile, Southwire’s counsel took pains to convince the Commissioners at the hearing that it had brought this case not on its own behalf, but rather “on behalf of the domestic industry.” ITC Doc. 114, List 1, at 56. Southwire contends that the industry’s reluctance is due to pending business transactions involving the other domestic manufacturers, the international ramifications of which might make domestic producers leery to support the petition. This response, however, supports Commissioner Brunsdale’s finding that the domestic industry is engaged in a “dynamic retrenchment that predates and has little to do with the Venezuelan imports at issue.” Indeed, if the industry truly perceived a threat of injury from the Venezuelan imports and was inclined to continue EC rod production on an increased scale, it would presumably indicate its support for Southwire’s petition. The record indicates that Southwire’s explanation is not the correct one. As the Court noted above, domestic companies began selling off capacity in the early 1980s, long before the Venezuelans arrived in the U.S. market. It is also noteworthy that when Venezuelan rod appeared on the U.S. market, the party directly controlling the Venezuelan imports was Southwire. Other plants purchased by the Venezuelans from American companies were already being supplied by the Venezuelans or Alcoa (who has also opposed this petition) before the purchases took place. The Commission accepted that Southwire’s sole petition was “on behalf of’ and therefore to the benefit of the U.S. industry as whole. The only evidence in the record, however, indicates that this petition is clearly against the interests of the other companies. General Electric (“GE”), a large purchaser of EC rod, has done its own industry survey. The GE testimony provides a valuable insight into how the EC rod industry is actually operating. Unlike Southwire’s version, which is supported by no other party, GE’s position is buttressed by the opposition of Alcoa, The Aluminum Trade Council, and the Aluminum Brick and Glass Workers Union. The Department of Commerce refused to consider the position of interested parties not formally part of the EC rod industry for the purposes of standing. Without reaching this issue for the purposes of standing, this Court holds that the stance of agencies and institutions intimately linked to the industry under investigation — such as the Aluminum Trade Council — is relevant to the support for the petition, or lack thereof, as evidence of threat of injury. GE testified to the Commission that although Southwire was a quality producer, it was unable, and in some cases unwilling, to provide for all of GE’s needs. Because GE’s purchasing decisions are made on the basis of reliability of supply, pricing, and quality, GE was forced to look elsewhere to ensure adequate supplies for all its production facilities — especially since, in keeping with the industry trend, it had been scaling back production of EC rod since the late 1970s and early 1980s. Southwire shut down its production facility at Carrolton, Georgia in 1986, in the face of near capacity utilization at its other plants and industry demand in excess of its supply in the mid and late 1980s. Furthermore, as of the time of this petition, Southwire had no plans to expand its capacity by acquiring or purchasing new mills. This additional evidence of industry retraction and inertia explains the industry’s reluctance to back the Southwire petition, and the Venezuelan move to increase U.S. sales. Contrary to Southwire’s contention that a narrow margin (0.02 percent) can make or break a contract bid, GE asserts that pricing is not determinative. For example, in 1988, GE paid Southwire 3.4 cents per pound extra to supply rod to Rome, New York rather than developing one of three potential alternate sources. Furthermore, GE paid its major supplier that year a slightly higher rod adder than it paid to its other two suppliers to assure timely delivery as required throughout its total plant system — in other words for “flexibility and dependability of supply.” Mr. Robertson, GE’s contracting agent, stated that the Venezuelan companies have not been undercutting or suppressing U.S. prices as far as GE was concerned. Rather, he was gravely concerned that Southwire would be unable or unwilling to supply GE’s needs in the future. GE began developing its supply relationships with Sural in 1983 and Iconel in 1984. GE ran preliminary production trials in 1984 and attempted to scale up its purchases in 1985 with limited success. In 1985, GE purchased 24 percent of its rod from Venezuela and paid a 1.4 percent premium over its U.S. producers who supplied the balance of its requirements. In 1986 and 1987, Sural quoted broad adders which were 38 percent higher than those of the U.S. producers and were consequently not awarded any GE business. This evidence further counters whatever other scant evidence of price undercutting or suppression of U.S. prices that exists in the record. Meanwhile, in 1988, Southwire insisted on switching GE to a higher priced metal base (that of U.S. Metals Week transaction price). That condition was not imposed upon GE by any other supplier, domestic or foreign. GE’s contracting agent estimated that South-wire’s decision resulted in a 2.4 cent per pound difference in the adder over the first five months of 1988. In addition, Southwire wanted to raise the rod fabrication adder by 58 percent. The combined effect of these two proposed increases would have been to raise Southwire’s price to GE by 100 percent over its 1987 price. Consequently, South-wire “priced itself’ out of its 1987 position as 45 percent supplier to GE, to settle at 5 percent. The industry reluctance to support Southwire’s petition in the instant matter is more understandable in view of this evidence. During the period from 1986 to 1988, GE reports that it bought “an estimated 75 million pounds of rod, over half of which has come from its main U.S. supplier over that time, over a third of which has come from Southwire, approximately 8 percent from a third U.S. supplier and only 4 percent from Venezuela,” not enough to support a finding of a material threat of injury to Southwire or other U.S. industry members. Support as Evidence of Threat Southwire, which represents approximately [ ] of the domestic EC rod industry, is the sole petitioner from that industry in this case. The failure of all other members of the industry to support the petition is strong factual evidence that the EC rod imports are not causing a real and imminent threat of injury to the domestic industry. ITC commissioners have distinguished in the past between industry support for standing and industry support as evidence of injury: “Wholly apart from the issue of standing to maintain a petition ..., the Commission may conclude under Sections 705(b) and 735(b) that relief is not appropriate where the petition lacks sufficient industry support. There seems to be little dispute about our ability to do so either as a matter of statutory intent or because lack of industry support is persuasive evidence of the lack of a causal connection between unfair imports and material injury to the domestic industry.” Certain all-Terrain Vehicles from Japan, No. 731-TA-388 (Preliminary), USITC Pub. 2071 (March 1988), Additional Views of Chairman Liebeler and Vice Chairman Brunsdale at 37 (footnote omitted) (emphasis added). The notion that industry support for standing is a separate question from support as evidence of injury or threat of injury is consistent with the position taken by the Court of Appeals for the Federal Circuit. See Suramerica v. United States, 966 F.2d 660, 665 n. 6 (Fed.Cir.1992). The Court of Appeals for the Federal Circuit has held that the ITC may defer to Commerce’s initial determination of support for purposes of pursuing an investigation. See Id. The ITC’s primary role as delineated by the statute is to determine whether or not there is injury or threat of injury. 19 U.S.C. § 1673 et seq. See discussion of standard of review, supra. Therefore, whereas Commerce now determines standing, countervailable subsidies, and sales at less than fair value, the only role left to the ITC is to gather relevant data in the record regarding injury or the threat of injury. In an opinion relying on Suramerica v. United States, 966 F.2d 660 (Fed.Cir.1992), this Court has also distinguished between support as evidence and support for the purposes of standing. See Minebea Co., Ltd. v. United States, 16 CIT -, -, 794 F.Supp. 1161, 1164-65 (1992) (upholding Commission finding of material injury where majority of domestic spherical plain bearings industry opposed petition), see Suramerica, at 665 n. 6. The Minebea Court echoed the Court of Appeals for the Federal Circuit by offering that “questions of the standing of a petitioner to file an antidumping duty petition are to be decided by the ITA alone” in the section of the opinion entitled “Standing.” Minebea Co., Ltd. v. United States, 16 CIT -, -, 794 F.Supp. 1161, 1164 (1992). In a separate section of its opinion entitled “ITC’s Injury Determination,” the Minebea Court rejected the argument of Minebea that there could be no finding of material injury if a majority of the U.S. industry believes that its problems are not caused by LTFV imports. Although the Court noted that Minebea did not challenge the ITC’s determination on the basis that it was not supported by substantial evidence, the Court went on to state in dictum that, “when the ITC is determining whether LTFV imports are a cause of material injury suffered by a U.S. industry, the position of any segment of the U.S. industry as to the cause of its difficulties is not something which the ITC is required to consider.” Minebea, 16 CIT -, -, 794 F.Supp. 1161, 1165 (1992), citing 19 U.S.C. § 1677(7) (1992). The Court declines to follow the dictum in Minebea, and holds that the ITC must consider the position of the domestic industry. While no statute requires a negative finding given the opposition of a majority of the domestic industry, 19 U.S.C. § 1516a(b)(l)(B) requires that an ITC determination be supported by substantial evidence on the whole record. Absent compelling evidence of threat, it is not reasonable to conclude that the domestic industry is threatened when a majority opposes or does not support that finding. There may be circumstances warranting a finding of injury, even where the majority either does not support or actively opposes the initiating petition, if the independent data clearly support a finding of threat of injury. In that instance the administrative agency would be taking remedial action on behalf of a company or companies instead of the industry. That is, the Commission, by pursuing enforcement, places its judgment above that of the industry — which either opposed the petition or declined to support it — regarding the effect of allegedly unfairly traded imports. The decision in Minebea concerned material injury and was made in light of the fact that Minebea did not challenge the ITC’s determination on the basis that it was not supported by substantial evidence. In contrast, Suramerica concerns threat of material injury, 19 U.S.C. § 1677(7)(F) (1982 & Supp.1992), and the heart of the issue is whether the ITC’s determination was based on substantial evidence. The industry’s position is highly relevant to whether an industry has been injured by imports, and even more relevant to the question of whether an industry that has not been so injured is nevertheless threatened with material injury. This Court has addressed the scope of the inquiry into the condition of the industry for the purposes of material injury. See Calabrian Corp., — CIT -, -, 794 F.Supp. 377, 380 (1992). The statute directs the Commission to determine “whether there is a reasonable indication that an industry in the United States is materially injured.” 19 U.S.C. § 1671b(a)(l)(A) (1982 & Supp.1992); Calabrian Corp., — CIT -, -, 794 F.Supp. 377, 380 (1992). “Industry” is defined as “the domestic producers as a whole of a like product.” 19 U.S.C. § 1677(4)(A) (1992) (emphasis added); Calabrian Corp., — CIT -, -, 794 F.Supp. 377, 385. “That Congress intended for the Commission to consider the entire industry is clear from the legislative history of the 1979 Act. Congress endorsed the Commission’s practice prior to the passage of the 1979 Act, in which ‘the phrase ‘an industry in the United States’ ... has been interpreted by the ITC as referring to all the domestic producer facilities engaged in the production of the like product.” Id., at 385, citing S.Rep. No. 249, at 82, 96th Cong., 1st Sess. § 252 (1979), U.S.Code Cong. & Admin.News 1979, at 381, 468; see Copperweld Corp. v. United States, 12 CIT 148, 165-66, 682 F.Supp. 552, 569 (1988). There is no reason why this analysis should not apply to inquiry in threat of injury cases. In Suramerica, the ITC conducted an inquiry based on allegations of material injury and of threat of material injury. Further, section 1677(7)(A) implicitly requires that the ITC consider the position of the domestic industry. Section 1677(7)(C)(iii), entitled “Impact on affected domestic industry” under the subheading. “Evaluation of relevant factors” lists a host of factors including potential decline in output, and potential negative effects on the existing development and production efforts of the domestic industry. These factors do not exist in a vacuum. They must be considered in light of the industry’s perceptions, which inform these indicators and the trends likely to materialize. Section 1677(7)(C)(iii) further states that “the Commission shall evaluate all relevant economic factors.” To hold that the consideration of information necessary or relevant to the evaluation of the relevant factors enumerated under section 1677(7)(C) is not required would eviscerate that statutory provision. In the legislative history to the Trade and Tariff Act of 1984, the Conference Committee acknowledged that “the projection of future events is necessarily more difficult than the evaluation of current data. Accordingly, a determination of threat will require a careful assessment of identifiable current trends and competitive conditions in the marketplace.” H.R.Rep. No. 1156, 98th Cong., 2d Sess. at 174 (1984), U.S.Code Cong. & Admin.News 1984, at 4910, 5220, 5291. The position of individual member companies, when the industry is comprised only of large companies which are few in number, is critical to this assessment since domestic industry perception of foreign competition influences current trends. Moreover, section 1673 contains the fundamental requirement that a causal nexus be established between the allegedly unfairly traded imports and the injury, ie., that the injury be “by reason of’ those imports. 19 U.S.C. § 1673 (1982). The position of the industry at issue, which is the single group with the largest stake in the outcome of the proceeding, is always relevant to determining this causal relationship. Again, in some cases, once the Commission considers relevant lack of industry support, it may still be justified in finding injury. A finding of a threat of. injury would be rare because majority opposition or minority support for a industry member petition alleging threat is strong evidence that the threat is not real, imminent, or likely. The ITC is required to consider the whole record and whatever in the record fairly detracts from its finding. See discussion, supra, re Universal Camera Corp. This Court in USX Corp. v. United States, 11 CIT 82, 95, 655 F.Supp. 487, 498 (1987) has stated that “[ajlthough ITC is not required to amass every conceivable shred of relevant data in order to comply with the requirements of the law, the absence of information necessary for a thorough analysis may render a determination unsupported by substantial evidence.” Likewise, although the Commission need not establish that it considered every shred of evidence to comply with the requirements of the law, its failure to consider relevant information may render a determination unsupported by substantial evidence. “Absent some showing to the contrary, the Commission is presumed to have considered all evidence in the record.” Rhone Poulenc, S.A. v. United States, 8 CIT 47, 55, 592 F.Supp. 1318, 1326 (1984). Moreover, the Commission “may, and indeed must, consider all evidence presented which comprises the record,” even if it is not contained in the staff report. Wells Mfg. Co. v. U.S., 11 CIT 911, 921, 677 F.Supp. 1239, 1247 (1987). The industry’s views in Suramerica are not only in the record, they are prominently known to the ITC; therefore, they must be considered. In conclusion, whereas the position of “any segment” of the U.S. industry may not be specifically itemized in section 1677(7), the implication of the statute, administrative procedure, and the prior holdings of this Court compel the conclusion that the industry support for a petition is relevant and must be considered. In Suramerica, the minority support for the petition, and the opposition to it, is relevant to the likelihood of the threat of injury. On remand, the ITC must consider the industry’s position regarding the petition and explain how a finding of threat of injury can be supported despite the decision of the majority of the industry not to support the petition and the lack of concern for a threat of injury as reflected in the ITC questionnaire responses. See discussion of responses to ITC questionnaires, infra. As a procedural and evidentiary matter, the absence of industry support for a petition is problematic in a Commission proceeding. Respondents are in effect not allowed to face the “industry” that accuses them. First, the Commission is prevented from fully evaluating the impact of imports on the domestic industry because the industry does not appear at the hearing to support the petition. The Commissioners, therefore, do not have the opportunity to ask important questions. Similarly, the petitioners, as here, can advantageously defer questions to an industry that is not present to answer. More importantly, respondents are denied the opportunity to review and question relevant data on the entire industry. Pursuant to the Commission’s regulations, 19 C.F.R. § 207.7(a), respondents are not permitted to review data provided by those industry members that do not affirmatively support the petition. As a result, the respondents are precluded from presenting a fully informed case. These concerns are especially warranted in this case. The ITC Staff Report is dotted with second-hand accounts and inferences that various of the other companies did indeed support the petition. See Staff Report, List 2, at A-29 & n. 1. For the purposes of support as evidence of injury, the ITC may not infer that industry members support a petition privately, via the Staff to the Commission, and outside the administrative and judicial process, where those companies have declined to indicate their support for a petition on the ITC questionnaire. This Court considers all such references to industry support for the petition, with the exception of Southwire’s, improper and inoperative, and must be excluded from consideration upon remand. Southwire is operating at peak capacity and enjoying record profits. A review of the record, demonstrates time and again how Southwire, as the sole petitioner, is placed in the awkward position of defending as injured the other members of the industry where they have not seen fit to defend themselves. It is anomalous in the extreme that the other companies would not to come forward when, as Southwire asserts, their very existence is at stake. If any other company truly felt real and imminent threat to their position from the Venezuelan imports, surely they would come forward. To ignore a real and imminent threat is to act at one’s peril and flies in the face of logic. The total lack of industry support apart from Southwire’s in this case seriously undermines the contention that the industry is in fact threatened. It is plain from the facts of this case that Southwire has brought this petition not to protect its own operations from injury, which are operating at full capacity, but to erect barriers to potential competitors as established companies leave the industry. “The Company believes it may be able to increase its market share in its core business through internal growth and acquisitions. Demand for most of the Company’s rod wire and cable products currently exceeds the Company’s production capacity. Due to recently announced decisions that certain competitors of the Company are leaving the wire and cable business, or are for sale, management of the Company believes that it may be able to realize increases in market share.” In the domestic EC rod industry, it is known with absolute certainty who the member companies are. Because these companies were all sizable, the ITC had a duty to question them and in fact did so. There were seven large U.S. companies producing EC rod domestically during the period of investigation and they were all solicited. Indeed, [ ] — five of the six other producers of EC rod — stated that they had not experienced any negative effects on growth, investment or ability to raise capital as a result of imports of Venezuelan rod. The sixth stated that it had experienced such negative effects only with respect to its wire and cable operations, and not with respect to EC rod. Four of the six other producers informed the ITC that they did not anticipate any negative impact from imports of EC rod from Venezuela. A fifth noted that it anticipated such a negative impact only with respect to its wire and cable operations. The Commission could find no present material injury based on these scant and admittedly unreliable data; nevertheless, the Commission majority was able to find a threat of material injury to the U.S. industry given these circumstances. The fact that not one other member of this industry comprised of a few large powerful companies came out in support of the Southwire petition is compelling factual evidence that the industry itself is not threatened with material injury by imports of Venezuelan EC rod. The additional opposition to the Southwire petition of Alcoa, the Aluminum Trade Council, and the principle union related to the industry buttresses evidence in the administrative record that there is no substantial evidence of a threat to the domestic industry of material injury. Significantly, Southwire itself did not view the threat of Venezuelan imports seriously enough to mention them on South-wire’s September 29, 1987 registration statement filed with the SEC, which was filed after the petition. The absence of any mention of a threat from the Venezuelan imports stands in stark contrast to Southwire’s depiction of the industry in its petition. The record informs the Court that “as a matter of SEC law and practice, facts concerning the effects of competition must be disclosed if those effects either had had, were having, or could reasonably be expected to have a material adverse impact on the business of the issuer in the future. SEC regulations specifically require disclosure of competitive conditions in the industry in which the issuer operates, including, where appropriate, an identification of specific competitors.” In the prospectus, Southwire describes itself as one of the largest manufacturers in the United States of copper and aluminum wire and cable for the transmission of electricity. Its strategy is to increase its position as a leader in the core businesses of rod and wire and cable. Although domestic competitors are identified by name, there is no mention of the effect of foreign competition. Sural further contends that the SEC requires companies like Southwire, who had not previously had a market for their shares, to summarize anything that might affect business or investment potential in one prominent place at the beginning of the prospectus. Southwire complied with this requirement by listing six special risk factors ranging from the volatility of aluminum prices to its own contingent liabilities. Foreign competition was not mentioned. Sural concludes that “as a matter of SEC law and practice, the allegations made by Southwire about the competitive effects of Venezuelan’s EC rod imports are material facts required to be disclosed in a registration statement, if true. No such disclosures were made. The Petitions [sic] and the registration statement simply cannot be reconciled.” Southwire’s only rebuttal is a brief letter from its attorneys attesting knowledge of the petition and dismissing Sural’s contentions regarding the SEC registration statement as unnecessary. Southwire’s attorneys indicate they were convinced that the Venezuelan imports posed a material threat to South-wire yet at the same time contended that disclosure was unnecessary. Southwire’s position is inherently inconsistent, and does not constitute a rational explanation for its failure to mention Venezuelan imports or foreign competition, and their threat to the industry, in its registration statement. Southwire would have it both ways: Sural is not a threat for the purposes of selling securities, but is a threat to an unconcerned industry for purposes of this litigation. Southwire cannot have it both ways. In addition to the lack of industry support, the Court finds in Southwire’s 1987 SEC registration statement compelling evidence — provided in the record by petitioner’s own document — that the U.S. industry is not threatened by reason of Venezuelan imports of EC rod. On remand, the ITC is ordered to explain how the ITC questionnaires to U.S. companies in the EC rod industry and South-wire’s own registration statement can be reconciled with respect to the condition of the industry and the U.S. companies’ views, as reflected in the ITC questionnaires, concerning the degree of threat posed by Venezuelan imports. Backgro