Arlanxeo USA LLC v. United States, 051719 USCIT, 17-00247

Docket Nº:17-00247, Slip Op. 19-60
Opinion Judge:Jennifer Choe-Groves, Judge
Party Name:ARLANXEO USA LLC and ARLANXEO BRASIL S.A., Plaintiffs, and INDUSTRIAS NEGROMEX, S.A. DE C.V., INSA, LLC, KUMHO PETROCHEMICAL CO., LTD., and SYNTHOS S.A., Consolidated Plaintiffs, v. UNITED STATES and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant, and LION ELASTOMERS LLC, Defendant-Intervenor.
Attorney:Kenneth G. Weigel, Alston & Bird, LLP, of Washington, D.C., argued for Plaintiffs Arlanxeo USA LLC and Arlanxeo Brasil S.A. With him on the briefs was Chunlian Yang. William C. Sjoberg, Porter, Wright, Morris & Arthur, LLP, of Washington, D.C., argued for Consolidated Plaintiffs Industrias Negrom...
Judge Panel:Before: Jennifer Choe-Groves, Judge
Case Date:May 17, 2019
Court:Court of International Trade
 
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ARLANXEO USA LLC and ARLANXEO BRASIL S.A., Plaintiffs, and INDUSTRIAS NEGROMEX, S.A. DE C.V., INSA, LLC, KUMHO PETROCHEMICAL CO., LTD., and SYNTHOS S.A., Consolidated Plaintiffs,

v.

UNITED STATES and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant, and LION ELASTOMERS LLC, Defendant-Intervenor.

No. 17-00247

Slip Op. 19-60

Court of Appeals of International Trade

May 17, 2019

[Sustaining the U.S. International Trade Commission's final affirmative material injury determination in the antidumping duty investigation of emulsion styrene-butadiene rubber from Brazil, Mexico, the Republic of Korea, and Poland.]

Kenneth G. Weigel, Alston & Bird, LLP, of Washington, D.C., argued for Plaintiffs Arlanxeo USA LLC and Arlanxeo Brasil S.A. With him on the briefs was Chunlian Yang.

William C. Sjoberg, Porter, Wright, Morris & Arthur, LLP, of Washington, D.C., argued for Consolidated Plaintiffs Industrias Negromex, S.A. de C.V. and INSA, LLC.

Jarrod M. Goldfeder, Trade Pacific, PLLC, of Washington, D.C., for Consolidated Plaintiff Kumho Petrochemical Co., Ltd. With him on the briefs was Aqmar Rahman.

Jill A. Cramer, Mowry & Grimson, PLLC, of Washington, D.C., for Consolidated Plaintiff Synthos S.A. With her on the briefs were Jeffrey S. Grimson and Yuzhe PengLing. Bryan P. Cenko, James C. Beaty, Kristin H. Mowry, and Sarah M. Wyss also appeared.

Jane C. Dempsey, Attorney, Office of General Counsel, U.S. International Trade Commission, of Washington, D.C., argued for Defendant U.S. International Trade Commission. With her on the brief were Dominic Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Matthew T. McGrath, Barnes, Richardson & Colburn, LLP, of Washington, D.C., argued for Defendant-Intervenor Lion Elastomers LLC.

Before: Jennifer Choe-Groves, Judge

OPINION

Jennifer Choe-Groves, Judge

This consolidated action challenges the final affirmative material injury determination issued by the U.S. International Trade Commission ("Defendant," "ITC," or "Commission") in the antidumping duty investigation of emulsion styrene-butadiene rubber ("ESBR") from Brazil, Mexico, the Republic of Korea ("Korea"), and Poland. See Emulsion Styrene-Butadiene Rubber From Brazil, Korea, Mexico, and Poland, 82 Fed. Reg. 43, 402 (Int'l Trade Comm'n Sept. 15, 2017); see also Emulsion Styrene-Butadiene Rubber from Brazil, Korea, Mexico, and Poland, USITC Pub. 4717, Inv. Nos. 731-TA-1334-1337 (Aug. 2017), available at https://www.usitc.gov/publications/701_731/pub4717.pdf (last visited May 14, 2019) ("Final ITC Determination"). Before the court are two Rule 56.2 Motions for Judgment on the Agency Record filed by Arlanxeo USA LLC, Arlanxeo Brasil S.A., Industrias Negromex, S.A. de C.V., INSA, LLC, Kumho Petrochemical Co., Ltd., and Synthos S.A. See Joint Mot. J. Agency R. Pursuant USCIT Rule 56.2 Pls. Arlanxeo USA LLC & Arlanxeo Brasil S.A., &

Consol. Pls. Industrias Negromex, S.A. de C.V., INSA, LLC, Kumho Petrochemical Co., Ltd., & Synthos S.A., Apr. 30, 2018, ECF No. 46; Mot. J. Agency R. Pursuant Rule 56.2 Consol. Pl. Synthos S.A. Issue Negligibility, Apr. 30, 2018, ECF No. 42. For the following reasons, the court sustains the Commission's final affirmative material injury determination.

ISSUES PRESENTED

The court reviews the following issues: 1. Whether the Commission's finding regarding the volume of subject imports was supported by substantial evidence;

2. Whether the Commission's finding regarding price effects was supported by substantial evidence and in accordance with the law;

3. Whether the Commission's finding regarding the impact of subject imports was supported by substantial evidence and in accordance with the law; and

4. Whether the Commission's determination that Poland was not a negligible source of subject imports was supported by substantial evidence and in accordance with the law.

PROCEDURAL HISTORY

Lion Elastomers LLC ("Lion") and East West Copolymer, LLC filed antidumping duty petitions with the U.S. Department of Commerce ("Department" or "Commerce") and the ITC on July 21, 2016, alleging that the domestic industry had been materially injured or threatened with material injury from imports of ESBR from Brazil, Korea, Mexico, and Poland. See Emulsion Styrene-Butadiene Rubber from Brazil, Korea, Mexico, and Poland, USITC Pub. 4636 at I-1, Inv. Nos. 731-TA-1334-1337 (Preliminary) (Sept. 2016). Commerce and the ITC instituted antidumping duty investigations. See id.

Commerce completed its antidumping duty investigations of the four subject countries and published its final determinations on July 19, 2017. See Emulsion Styrene-Butadiene Rubber From Brazil, 82 Fed. Reg. 33, 048 (Dep't Commerce July 19, 2017) (final affirmative determination of sales at less than fair value and final negative determination of critical circumstances) ("Brazil AD Final Determination"); Emulsion Styrene-Butadiene Rubber From the Republic of Korea, 82 Fed. Reg. 33, 045 (Dep't Commerce July 19, 2017) (final affirmative determination of sales at less than fair value, and final affirmative determination of critical circumstances, in part) ("Korea AD Final Determination"); Emulsion Styrene-Butadiene Rubber From Mexico, 82 Fed. Reg. 33, 062 (Dep't Commerce July 19, 2017) (final affirmative determination of sales at less than fair value) ("Mexico AD Final Determination"); Emulsion Styrene-Butadiene Rubber From Poland, 82 Fed. Reg. 33, 061 (Dep't Commerce July 19, 2017) (final affirmative determination of sales at less than fair value) ("Poland AD Final Determination"). In the Brazil investigation, Commerce found that the subject imports of ESBR were being sold at less than fair value and calculated a final dumping margin of 19.61 percent. See Brazil AD Final Determination, 82 Fed. Reg. at 33, 048. Commerce found also that the subject imports of ESBR were being sold at less than fair value in the Korea, Mexico, and Poland investigations and calculated final dumping margins of 9.66 percent to 44.30 percent, 19.52 percent, and 25.43 percent, respectively. See Korea AD Final Determination, 82 Fed. Reg. at 33, 046; Mexico AD Final Determination, 82 Fed. Reg. at 33, 063; Poland AD Final Determination, 82 Fed. Reg. at 33, 062.

The ITC published its final affirmative material injury determination on August 3, 2017. See Emulsion Styrene-Butadiene Rubber From Brazil, Mexico, Korea, and Poland, 82 Fed. Reg. at 43, 402. The ITC held a public hearing on June 29, 2017, see Final ITC Determination at I-1, and received pre-hearing and post-hearing briefs from the relevant parties. See id. at 3. The Commission received questionnaire data from 15 importers accounting for 100 percent of imports of subject ESBR from Brazil, 92.2 percent of imports of subject ESBR from Korea, 100 percent of imports of subject ESBR from Mexico, 99.9 percent of imports of subject ESBR from Poland, and 79.5 percent of imports of ESBR from non-subject countries during the final year of investigation. See id. at 4. The ITC held a public hearing on June 29, 2017, see id. at I-1, and received pre-hearing and post-hearing briefs from relevant parties. See id. at 3. The period of investigation spanned from January 2014 through March 2017. See id. at 24.

An evenly-divided Commission determined that an industry in the United States had been materially injured by reason of imports of ESBR from Brazil, Korea, Mexico, and Poland that Commerce found to be sold at less than fair value. See id. at 3, 12. As a result, Commerce published antidumping duty orders on subject imports from the four subject countries on September 12, 2017. See Emulsion Styrene-Butadiene Rubber from Brazil, the Republic of Korea, Mexico, and Poland: Antidumping Duty Orders, 82 Fed. Reg. 42, 790 (Dep't Commerce Sept. 12, 2017) ("Antidumping Duty Orders").

The Commission commenced its injury analysis by defining the domestic product that is like or most similar to the imported ESBR and identifying the industry responsible for producing the domestic like product. See Final ITC Determination at 4-8. ESBR is predominantly used in the production of car and light truck tires, as well as in a variety of non-tire products, including conveyor belts, shoe soles, hoses, roller coverings, and flooring. See id. at 6. The Commission's definition of the domestic like product was coterminous with the scope of the imported ESBR under investigation by Commerce. See id. at 7. "The scope of these investigations covers grades of ESBR included in the [International Institute of Synthetic Rubber Producers] 1500 and 1700 series of synthetic rubbers. . . . The Commission consequently defined a single domestic like product, consisting of the 1500 and 1700 series ESBR, a product category that was coextensive with the...

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