United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO, CLC v. United States

• Decision Date: 18 February 2020
• Docket Number: Slip Op. 20-20,Consol. Court No. 17-00078
• Citation: 425 F.Supp.3d 1374
• Parties: UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, Plaintiff, v. UNITED STATES, Defendant, and Cooper Tire & Rubber Company, China Rubber Industry Association, and China Chamber of Commerce of Metals, Minerals and Chemicals, Defendant-Intervenors.
• Court: U.S. Court of International Trade

425 F.Supp.3d 1374

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, Plaintiff,

v. UNITED STATES, Defendant,andCooper Tire & Rubber Company, China Rubber Industry Association, and China Chamber of Commerce of Metals, Minerals and Chemicals, Defendant-Intervenors.

Slip Op. 20-20

Consol. Court No. 17-00078

United States Court of International Trade.

February 18, 2020

Elizabeth J. Drake and Geert De Prest, Schagrin Associates, of Washington, D.C., argued for Plaintiff United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. With them on the brief were Terence P. Stewart, Mark D. Beatty, and Shahrzad Noorbaloochi.

David A. Goldfine, Attorney, Office of General Counsel, U.S. International Trade Commission, of Washington, D.C., argued for Defendant United States. With him on the brief were Dominic L. Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Ned H. Marshak, Max. F. Schutzman, and Jordan C. Kahn, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, N.Y., argued for Defendant-Intervenors China Rubber Industry Association and China Chamber of Commerce of Metals, Minerals and Chemicals.

Jennifer Choe-Groves, Judge

Choe-Groves, Judge: This action involves a challenge to the U.S. International Trade Commission's ("ITC" or "Commission") final affirmative material injury determination on remand in its antidumping and countervailing duty investigations on truck and bus tires ("TBTs") from the People's Republic of China. See Truck and Bus Tires from China, Inv. Nos. 701-TA-556 and 731-TA-1311 (Final), USITC Pub. 4673 (Mar. 2017), PD 198 (" USITC Pub. 4673"); Views of the Commission on Remand (Int'l Trade Comm'n Jan. 30, 2019), ECF No. 63 ("Remand Results").

Before the court are the Commission's Remand Results filed per the court's order in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC v. United States, 42 CIT ––––, 348 F. Supp. 3d 1328, 1339–40 (2018) (" United Steel I"). For the reasons discussed below, the court sustains the Remand Results.

I. BACKGROUND

The court presumes familiarity with the facts and record of proceedings as discussed in the prior opinion and recounts those facts relevant to the court's review of the Remand Results. See United Steel I at 1330–39.

In January 2016, Plaintiff United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC ("USW") filed a petition in the antidumping and countervailing duty investigations as to TBTs from China. Remand Results at 1. The Commission instituted countervailing and antidumping duty investigations and reached affirmative preliminary determinations. Truck and Bus Tires from China, 81 Fed. Reg. 14,888, 14,888 (Int'l Trade Comm'n Mar. 18, 2016). Based on the record developed in the subject investigations, the Commission voted 3-2 in February 2017 that the domestic industry was neither materially injured nor threatened with material injury by reason of subject imports of TBTs from China. Remand Results at 3.¹

USW challenged several aspects of the Commission's negative material injury determination, including its findings on the conditions of competition and determinations as to price effects, impact, and threat. United Steel I at 1332–39. The court sustained the conditions of competition findings and adverse impact determinations, but remanded to the Commission for reconsideration of its price effects and threat analyses. Id. at 1335–39. The court directed the Commission to reconsider the presence of significant underselling in its price effects analysis and to address certain aspects of its negative threat determination. Id.

On remand in a 3-2 vote in January 2019, the Commission reached an affirmative material injury determination, an opposite result from the prior proceeding. Remand Results at 1.² The Commission reasoned that the subject imports are sold in the United States at less than fair value and are subsidized by the Chinese government. See id. at 1, 35–47. Specifically, the ITC found that "the volume and increase in volume of subject imports [was] significant in absolute terms and relative to domestic production and consumption[,]" id. at 37, that the subject imports undersold the domestic like product in increasing margins and significantly depressed prices, id. at 41–42, and "that the significant volume of subject imports, at prices that undersold the domestic like product and depressed domestic prices, adversely impacted the domestic industry," id. at 47.

Defendant-Intervenor China Rubber Industry Association and Sub-Committee of Tire Producers of the China Chamber of Commerce of Metals, Minerals & Chemical Importers (collectively, "Respondents") contest certain aspects of the Remand Results, specifically, the ITC's findings on the three mandatory injury factors: volume, impact, and price. Def.-Intervenors' Comments in Opp'n to the Commission's Remand 8–44, ECF No. 80 ("Respondents' Br."). Defendant United States and Plaintiff USW filed replies in support of the Remand Results. Def. United States' Reply Comments in Supp. of the Affirmative Remand Determinations, ECF No. 90 ("Def.'s Br."); Pl.'s Reply Comments in Supp. of the Commission's Affirmative Remand Determination, ECF No. 94 ("USW's Br."). Defendant-Intervenor Cooper Tire & Rubber Company filed no comments on the Remand Results. The court held oral argument. Oral Argument, Oct. 29, 2019, ECF No. 112.

II. JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c). The court will uphold the Commission's determination unless it is unsupported by substantial record evidence, or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i). The court also reviews determinations made on remand for compliance with the court's order. ABB Inc. v. United States, 42 CIT ––––, 355 F. Supp. 3d 1206, 1211 (2018) (citation omitted).

III. DISCUSSION

Respondents contend that the Commission's volume, price effects, and impact analysis findings are unsupported by substantial evidence. Respondents' Br. at 6.

USW responds that Respondents misapprehend the standard of review because Respondents request that the court conduct an impermissible reweighing of the evidence or otherwise make new factual findings based on opposing substantial evidence. USW's Br. at 11, 27.

A. The Commission's Volume Determination is Sustained

Respondents argue that the Commission's volume analysis is unsupported by substantial evidence because the Commission's market segment analysis failed to consider retreaded TBTs in the aftermarket when evaluating the significance and increase in volume of subject imports. Respondents' Br. at 8. USW avers that because the domestic like product did not include retreaded TBTs, the Commission correctly disregarded shipments of retreaded TBTs and focused on shipments of the domestic like product. USW's Br. at 4, 31–34. USW highlights that before the Commission began its investigations, even Respondents asserted that retreaded TBTs should be excluded from the domestic like product analysis. Id. at 32–33. In its original negative determination, the Commission found that substantial evidence supported a conclusion that the volume of subject imports was significant in absolute terms and relative to consumption. USITC Pub. 4673 at 26. On remand, the Commission reached the same conclusion. Remand Results at 37.

When analyzing whether an industry is materially injured "by reason of" subject imports, the Commission must "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). In reviewing the Commission's findings, the court may not " ‘reweigh the evidence or ... reconsider questions of fact anew.’ " Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 1377 (Fed. Cir. 2015) (quoting Trent Tube Div., Crucible Materials Corp. v. Avesta Sandvik Tube AB, 975 F.2d 807, 815 (Fed. Cir. 1992) ).

In this case, the court concludes that substantial evidence supports the Commission's volume determination. The Commission relied on data showing an increase in subject imports and that subject imports gained market share during the period of investigation. Remand Results at 27, 35. As to the total market share increase, the Commission examined questionnaire data and found that the growth in subject imports was particularly concentrated in the TBT aftermarket. Id. at 35–37. The Commission excluded retreaded TBTs from the domestic industry in its preliminary determinations because no party advocated for a contrary result and the record generally showed "clear dividing lines between new and retreaded [TBTs], particularly given clear distinctions between them in terms of manufacturing processes, facilities, and employees, and price, and also due to distinctions between them in terms of use and channels of distribution and somewhat limited interchangeability." Remand Results at 16–17. When the Commission considered making its final determinations, the parties also agreed that retreaded TBTs should be excluded from the domestic like product and industry analysis. Id.; see NSK Corp. v. United States, 32 C.I.T. 966, 983, 577 F.Supp.2d 1322 (2008) ("It is well settled that the ITC bears no obligation to perform a market segmentation analysis" and "d[oes] not err in basing its determination on data representing the experience of the domestic industry as a whole, rather than on the experience of [different segments of the industry] separately." (quoting Tropicana Prods., Inc. v. United States, 31 C.I.T. 548, 559–60, 484...