Gold E. Paper (Jiangsu) Co. v. United States

• Citation: 896 F.Supp.2d 1242
• Decision Date: 21 December 2012
• Docket Number: Slip Op. 12–160.,Court No. 10–00368.
• Parties: GOLD EAST PAPER (JIANGSU) CO., LTD., Ningbo Zhonghua Paper Co., Ltd., Global Paper Solutions, PT Pindo Deli Pulp and Paper Mills, and Paper Max Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Appleton Coated LLC, NewPage Corp., S.D. Warren Company d/b/a Sappi Fine Paper North America, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL–CIO–CLC, Defendant–Intervenors.
• Court: U.S. Court of International Trade

896 F.Supp.2d 1242

GOLD EAST PAPER (JIANGSU) CO., LTD., Ningbo Zhonghua Paper Co., Ltd., Global Paper Solutions, PT Pindo Deli Pulp and Paper Mills, and Paper Max Ltd., Plaintiffs,

v. UNITED STATES, Defendant,andAppleton Coated LLC, NewPage Corp., S.D. Warren Company d/b/a Sappi Fine Paper North America, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL–CIO–CLC, Defendant–Intervenors.

Slip Op. 12–160. Court No. 10–00368.

United States Court of International Trade.

Dec. 21, 2012.

Daniel L. Porter, Curtis, Mallet–Prevost, Colt & Mosle LLP, of Washington, D.C., argued for Plaintiffs. With him on the brief were James P. Durling, Matthew P. McCullough, and Ross Bidlingmaier, of the same firm, and Stephen E. Wieker, Winston & Strawn LLP, of Washington, D.C.

David B. Fishberg, Office of the General Counsel, U.S. International Trade Commission, of Washington, D.C., argued for Defendant. With him on the brief were Marc A. Bernstein, Office of the General Counsel, James M. Lyons, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Eric P. Salonen, Stewart and Stewart, of Washington, D.C., argued for Defendant–Intervenors. With him on the brief were Terence P. Stewart and Philip A. Butler, of the same firm, and Gilbert B. Kaplan and Brian E. McGill, King & Spalding LLP, of Washington, D.C.

OPINION

RIDGWAY, Judge:

In this action, the plaintiffs—three foreign producers of certain coated paper, and two U.S. importers of that merchandise (hereinafter, the “Foreign Producers”) ¹—contest the unanimous final determination of the U.S. International Trade Commission (“Commission” or “ITC”) that imports of such coated paper that are sold in the United States for less than fair market value and subsidized by the Governments of the People's Republic of China (“PRC”) and Indonesia posed a threat of material injury to the U.S. domestic industry. See Complaint ¶ 1; Certain Coated Paper Suitable for High–Quality Print Graphics Using Sheet–Fed Presses from China and Indonesia, Inv. Nos. 701–TA–470–471 and 731–TA–1169–1170 (Final), USITC Pub. 4192 at 1 (Nov. 2010).² The Commission's determination led the U.S. Department of Commerce to issue antidumping and countervailing duty orders covering imports of the subject merchandise from the PRC and from Indonesia.³

Pending before the Court is Plaintiffs' Motion for Judgment on the Agency Record. In that motion, the Foreign Producers assert that the Commission's affirmative final threat of material injury determination is not supported by substantial evidence, and is otherwise not in accordance with law. See generally Respondent Plaintiffs' Brief in Support of Their Motion for Judgment on the Agency Record (“Pls.' Brief”); Respondent Plaintiffs' Reply Brief in Support of Their Motion for Judgment on the Agency Record (“Pls.' Reply Brief”).⁴

The Commission and Defendant–Intervenors—three domestic producers of coated paper, and a labor union (hereinafter the “Domestic Producers”) ⁵—oppose the Foreign Producers' motion and maintain that the Commission's determination should be sustained in all respects. See generally Defendant's Memorandum in Opposition to Motion of Plaintiffs for Judgment on the Agency Record (“Def.'s Brief”); Defendant–Intervenors' Response in Opposition to Plaintiffs' Motion for Judgment on the Agency Record (“Def.-Ints.' Brief”).

Jurisdiction lies under 28 U.S.C. § 1581(c) (2006).⁶ For the reasons set forth below, Plaintiffs' Motion for Judgment on the Agency Record must be denied.⁷

I. Background

The nation's international trade laws require that antidumping and countervailing duties be imposed upon imported merchandise in cases of dumping ( i.e., where merchandise “is being, or is likely to be, sold in the United States at less than ... fair value”) and in cases where the merchandise is the product of an improper subsidy ( i.e., where “a countervailable subsidy is being provided with respect to the ... merchandise”)—but only when the dumping or subsidies result in “material injury or the threat of material injury” to a domestic industry. See19 U.S.C. §§ 1671, 1673.

In cases where dumping is alleged, the U.S. Department of Commerce is charged with determining whether the imported merchandise “is being, or is likely to be” dumped. See19 U.S.C. § 1673d(a)(1). Similarly, where prohibited subsidies are alleged, Commerce determines whether the imported merchandise is the beneficiary of a “countervailable subsidy.” See19 U.S.C. § 1671d(a)(1).

In both antidumping and countervailing duty cases, the role of the Commission, in turn, is to make the requisite “injury” determination—that is, to determine whether the alleged dumping or subsidies result in “material injury or the threat of material injury” to the domestic industry at issue. See19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). Material injury is defined as “harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A).

To make an affirmative determination of material injury, the Commission must conclude that imports are having an adverse impact on the domestic industry at present.19 U.S.C. § 1677(7)(C). In contrast, to reach an affirmative determination of threat of material injury, the Commission must conclude (in relevant part) that “further dumped or subsidized imports are imminent” and that “material injury by reason of imports would occur unless an [antidumping or countervailing duty] order is issued....” 19 U.S.C. § 1677(7)(F)(ii). In reaching a determination on “threat of material injury,” the Commission is to analyze certain statutory threat factors before making its final decision. See19 U.S.C. § 1677(7)(F)(i) (listing threat factors). Whether evaluating “material injury” or “threat of material injury,” the Commission must consider the effect of the volume of imports on the domestic industry, the effect of imports on domestic prices, and whether there is likely injury to the domestic industry caused by imports. See19 U.S.C. §§ 1677(7)(B)(i), 1677(7)(F)(i).

The record of the agency proceeding here documents the Commission's consideration of the domestic industry's allegations of “material injury” and “threat of material injury” in both the antidumping and countervailing duty investigations, covering the period January 2007 through June 2010 (the “period of investigation”). The Commission organized its final views by separately addressing volume, price effects, and the impact of the subject imports. See Final Views at 26–39. As to each topic, the Commission first considered the allegations of present material injury, then the threat of material injury. See Final Views at 26–39.

Ultimately, based on the record compiled before it, the Commission reached a negative final determination on “material injury,” concluding that there was no present material injury to the domestic coated paper industry. See Final Views at 26.⁸ However, the Commission concluded that—in light of its findings on likely subject import volume, likely price effects, and the likely impact of subject imports on the domestic industry—imports of coated paper from the PRC and Indonesia would increase in the imminent future and that material injury due to such imports would occur absent imposition of antidumping and countervailing duties. Final Views at 38–39. The Commission therefore reached an affirmative final determination on “threat of material injury,” concluding—unanimously—that imports of coated paper from the PRC and Indonesia threatened the domestic industry. SeeCertain Coated Paper Suitable For High–Quality Print Graphics Using Sheet–Fed Presses From China and Indonesia: Determinations, 75 Fed.Reg. 70,289 (ITC Nov. 17, 2010); see also Final Views at 3.

The Commission's affirmative determination on threat of material injury led to the issuance of antidumping and countervailing duty orders by Commerce. See n. 3, supra.

This action followed.

II. Standard of Review

In reviewing a challenge to a final determination, the Commission's determination must be upheld unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with the law.” 19 U.S.C. § 1516a(b)(1)(B)(i). “Substantial evidence” is “more than a mere scintilla. It 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, 477–78, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ( quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (defining “substantial evidence” as “something less than the weight of the evidence”).

“[A] party challenging the Commission's determination under the substantial evidence standard ‘has chosen a course with a high barrier to reversal.’ ” Nippon Steel Corp. v. United States, 458 F.3d 1345,1352, 1358 (Fed.Cir.2006) ( quoting Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed.Cir.2001)). That party “bears the burden of proving the evidence [is] inadequate.” Micron Tech., Inc. v. United States, 117 F.3d 1386, 1397 (Fed.Cir.1997).

It is, of course, true that any evaluation of the substantiality of evidence “must take into account whatever in the record fairly detracts from its weight,” including “contradictory evidence or evidence from which conflicting inferences could be drawn.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) ( quoting Universal Camera Corp., 340 U.S. at 487–88, 71 S.Ct. 456);see also Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1380–81 (Fed.Cir.2008) (same). However, the mere fact that it may be possible to draw two inconsistent conclusions from the record does not prevent the agency's determination from being supported by substantial evidence. Am. Silicon Techs. v. United States, ...