Shandong Ttca Biochemistry Co. v. United States, Slip Op. 11–53.Court No. 09–00241.

Citation774 F.Supp.2d 1317
Decision Date11 May 2011
Docket NumberSlip Op. 11–53.Court No. 09–00241.
PartiesSHANDONG TTCA BIOCHEMISTRY CO., LTD., et al., Plaintiffs,v.UNITED STATES, Defendant,andCargill, Incorporated, et al., Defendant–Intervenors.
CourtU.S. Court of International Trade

OPINION TEXT STARTS HERE

Troutman Sanders, LLP (Julie C. Mendoza, Donald B. Cameron, R. Will Planert, Brady W. Mills, and Mary S. Hodgins), Washington, DC, for Plaintiffs Shandong TTCA Biochemistry Co., Ltd., et al.James M. Lyons, General Counsel, Andrea C. Casson, Assistant General Counsel, U.S. International Trade Commission (Mary Jane Alves), for Defendant United States.1Sidley Austin, LLP (Neil R. Ellis and Jill Caiazzo), Washington, DC, for DefendantIntervenors Cargill, Incorporated, Archer Daniels Midland Co., and Tate & Lyle Americas LLC.

OPINION

WALLACH, Judge:

I

INTRODUCTION

Plaintiffs Shandong TTCA Biochemistry Co., Ltd., et al. (Plaintiffs) 2 challenge the United States International Trade Commission's (“Commission or “ITC”) finding of material injury in Citric Acid and Certain Citrate Salts from Canada and China, Inv. Nos. 701–TA–456 and 731–TA1151–1152 (Final), USITC Pub. 4076 (May 2009) (“Final Determination”), Public Record (“P.R.”) 230.3 The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Plaintiffs' Shandong TTCA Biochemistry Co., Ltd., et al. Motion for Judgment Upon the Agency Record is DENIED. The Commission's finding of material injury is supported by substantial evidence and otherwise in accordance with law.

II

BACKGROUND

On April 14, 2008, three domestic producers of citric acid petitioned the United States Department of Commerce (Commerce) and the Commission for the imposition of antidumping duties on imports of citric acid from Canada and the imposition of both antidumping and countervailing duties on imports of citric acid from China. Citric Acid and Certain Citrate Salts from Canada and the People's Republic of China: Initiation of Antidumping Duty Investigations, 73 Fed.Reg. 27,492, 27,492 (May 13, 2008); Notice of Initiation of Countervailing Duty Investigation: Citric Acid and Certain Citrate Salts from the People's Republic of China, 73 Fed.Reg. 26,960, 29,960 (May 12, 2008).4 The period of investigation (“POI”) covers the years 2006 through 2008. Final Determination at 4.

Following affirmative determinations by Commerce, the Commission proceeded to make a final determination as to material injury for each of the three investigations. Id. at 1; see 19 U.S.C. §§ 1671d(b), 1673d(b). In making these determinations, the Commission considered three statutory factors:

(I) the volume of imports of the subject merchandise, (II) the effect of imports of that merchandise on prices in the United States for domestic like products, and (III) the impact of imports of such merchandise on domestic producers of domestic like products....

19 U.S.C. § 1677(7)(B)(i); see Final Determination at 15–37. The Commission considered these factors by “cumulatively assess[ing] the volume and effects of imports of the subject merchandise” from Canada and China. 19 U.S.C. § 1677(7)(G); Final Determination at 15.5

At the close of the injury investigation, the Commission reached multiple conclusions that are of importance, finding in its volume analysis that the “large and increasing volume of subject imports have had significant adverse effects on prices of the domestic like product” and finding in its pricing analysis that subject imports created a “cost-price squeeze” effect on the domestic industry while “the pricing data present a varied picture that is consistent with a finding of significant underselling.” Final Determination at 28–29 and 32. Additionally, the Commission found that intra-industry competition did not explain all of the pricing pressure faced by the domestic industry. Id. at 31–32. Overall, the Commission determined that “an industry in the United States is materially injured by reason of imports of citric acid ... from ... China that [Commerce] found to be sold at less than fair value and imports from China that Commerce found to be subsidized by the Government of China.” Final Determination at 1 (footnote omitted).

After receiving notification of the Commission's determinations, Commerce issued two antidumping duty orders and one countervailing duty order. See Citric Acid and Certain Citrate Salts from Canada and the People's Republic of China: Antidumping Duty Orders, 74 Fed.Reg. 25,703, 25,703 (May 29, 2009); Citric Acid and Certain Citrate Salts From the People's Republic of China: Notice of Countervailing Duty Order, 74 Fed.Reg. 25,705, 25,705 (May 29, 2009).

Plaintiffs brought the instant action challenging “the final affirmative injury determination of the [Commission] concerning imports from China of citric acid.” Complaint, Docket No. 9, ¶ 1. Plaintiffs are Chinese producers and exporters to the United States of citric acid from China.” Id. ¶ 3.

III

STANDARD OF REVIEW

The court will hold unlawful an injury determination by the Commission if that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see 19 U.S.C. § 1516a(a)(2)(B)(i). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (citation omitted). [T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.” Matsushita Elect. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (citation omitted).

The reviewing court may not, “even as to matters not requiring expertise ... displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In this regard “the court may not reweigh the evidence, or substitute its judgment for that of the ITC.” Dastech Int'l, Inc. v. USITC, 21 CIT 469, 470, 963 F.Supp. 1220 (1997); Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).6

IV

DISCUSSION

In order to make a final affirmative determination in its injury investigations, the Commission must find that:

(A) an industry in the United States—

(i) is materially injured, or

(ii) is threatened with material injury, or

(B) the establishment of an industry in the United States is materially retarded,

by reason of imports, or sales (or the likelihood of sales) for importation....

19 U.S.C. § 1671d(b)(1); 19 U.S.C. § 1673d(b)(1). With respect to less than fair value [“LTFV”] imports, “material injury” is defined as “harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A). “When determining the causal connection between imports and material injury, ‘the Commission is required to consider three factors ...: 1) the volume of imports, 2) the effect of imports on prices of like domestic products, and 3) the impact of imports on domestic producers of like products.’ Cleo Inc. v. United States, 30 CIT 1380, 1390, 2006 WL 2685080 (2006) (citing USX Corp. v. United States, 11 CIT 82, 84, 655 F.Supp. 487 (1987) (citing 19 U.S.C. § 1677(7)(B))). In addition, the Commission “may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports.” 19 U.S.C. § 1677(7)(B)(ii).

“The presence or absence of any factor which the Commission is required to evaluate [in these cases] shall not necessarily give decisive guidance with respect to the determination by the Commission of material injury.” 19 U.S.C. § 1677(7)(E)(ii). “The flexibility afforded to the ITC is evinced by the legislative history.... No factor, standing alone, triggers a per se rule of material injury.” Am. Spring Wire Corp. v. United States, 8 CIT 20, 23, 590 F.Supp. 1273 (1984) (citing S.Rep. No. 96–249 at 88 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 474 (“The significance of the various factors affecting an industry will depend upon the facts of each particular case. Neither the presence nor the absence of any factor listed in the bill can necessarily give decisive guidance with respect to whether an industry is materially injured.”)).

Plaintiffs challenge the Commission's volume and price analyses as unsupported by substantial evidence on the record. Plaintiffs' Brief in Support of Motion for Judgment Pursuant to Rule 56.2, as corrected by Errata Memorandum (“Plaintiffs' Brief”) at 9–36; see infra Parts IV.A and IV.B. Plaintiffs also argue that the Commission failed to demonstrate that it avoided attributing injury from intra-industry competition to subject imports. Plaintiffs' Brief at 36–39; see infra Part IV.C. For the reasons stated below, the Commission's determinations are supported by substantial evidence on the record.

AThe Commission's Volume Analysis Is Supported By Substantial Evidence

When examining the volume of imports, the Commission is directed by statute to “consider whether the volume of imports of the merchandise, or any increase in that volume, either in absolute terms or relative to production or consumption in the United States, is significant.” 19 U.S.C. § 1677(7)(C)(i).

The Commission found, and Plaintiffs do not contest, that “the volume of subject imports is significant, both absolutely and relative to consumption and production in the United States.” Final Determination at 25; see Memorandum of Defendant United States International Trade Commission in Opposition to Plaintiffs' Motion for Judgment on the Agency Record (“Defendant's Opposition”) at 10–13 (capitalization modified).7 All parties also agree that U.S. “consumption of citric acid increased by [[a certain]] percent over the three year POI.” Plaintiffs'...

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