Chemours Co. v. United States

• Decision Date: 06 May 2020
• Docket Number: Slip Op. 20-61,Court No. 18-00174
• Citation: 443 F.Supp.3d 1315
• Parties: The CHEMOURS COMPANY FC, LLC, Plaintiff, v. UNITED STATES, Defendant, and AGC Chemicals America, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

443 F.Supp.3d 1315

The CHEMOURS COMPANY FC, LLC, Plaintiff,

v. UNITED STATES, Defendant,andAGC Chemicals America, et al., Defendant-Intervenors.

Slip Op. 20-61

Court No. 18-00174

United States Court of International Trade.

May 6, 2020

Mary J. Alves, Cassidy Levy Kent (USA) LLP of Washington, DC, argued for plaintiff. With her on the brief were James R. Cannon, Jr., Ulrika K. Swanson, and James E. Randsell.

Karl S. von Schriltz, Attorney-Advisor, United States International Trade Commission of Washington, DC, argued for defendant. With him on the brief were Andrea C. Casson, Assistant General Counsel for Litigation, and Dominic L. Bianchi, General Counsel.

Jordan C. Kahn, Grunfeld, Desiderio, Lebowitz Silverman & Klestadt LLP of New York, NY, for defendant-intervenors PTFE Processors Alliance and Chinese respondents. With him on the brief was Max F. Schutzman.

Russell A. Semmel, Arent Fox, LLP of Washington, DC, for defendant-intervenors Gujarat Fluorochemicals Limited. With him on the brief were Matthew M. Nolan, John M. Gurley, and Claudia D. Hartleben.

OPINION

Reif, Judge:

Before the court is the motion for judgment on the agency record, pursuant to United States Court of International Trade ("USCIT") Rule 56.2, of plaintiff The Chemours Company FC, LLC. See Pl.'s Mot. For J. on the Agency R., ECF No. 69–1 ("Pl. Br."). By its motion, plaintiff contests the final negative material injury and threat of material injury determinations of the United States International Trade Commission ("Commission") in its antidumping and countervailing duty investigations of Polytetrafluoroethylene Resin ("PTFE") from the People's Republic of China ("China") and India. See Polytetrafluoroethylene Resin from China and India, Inv. Nos. 701-TA-588 and 731-TA-1392-1393, USITC Pub. 4801 (July 2018) (Final), and Polytetrafluoroethylene Resin from China and India , Inv. Nos. 731-TA-1392-1393, USITC Pub. 4841 (Nov. 2018) (Final) (collectively, "Final Determinations ").

The Commission opposes plaintiff's motion, asking the court to sustain the Commission's determinations. Def. ITC's Opp'n to Pl.'s Mot. for J. on the Agency R., ECF No. 82 ("Def. Opp. Br.").

Defendant-intervenors, the PTFE Processors Alliance ("PPA"), Chinese Respondents¹ and Gujarat Fluorochemicals

Limited ("GFL") join the Government in opposing plaintiff's motion. See Def.-Ints.' PPA and Chinese Respondents Resp. to Pl.’s Rule 56.2 Mot. For J. on the Agency R., ECF No. 84 ("Chinese Def.-Ints.' Br."); Resp. Br. of Def.-Ints. GFL in Opp'n to Pl.'s Rule 56.2 Mot. for J. on the Agency R., ECF No. 86 ("GFL Def.-Ints.' Br."). For the reasons discussed below, the Final Determinations are remanded to the Commission for action in conformity with this decision.

BACKGROUND

On September 28, 2017, plaintiff filed antidumping and countervailing duty petitions with the United States Department of Commerce ("Commerce") and the Commission. Polytetrafluoroethylene ("PTFE") Resin from China and India, 82 Fed. Reg. 46,284 (Int'l Trade Comm'n Oct. 4, 2017) (institution of antidumping and countervailing duty investigations). On November 13, 2017, the Commission published preliminary affirmative injury determinations. Polytetrafluoroethylene (PTFE) Resin from China and India , Inv. Nos. 701-TA-588 and 731-TA-1392-93 (Preliminary), USITC Pub. 4741 (Nov. 2017) at 3. On February 28, 2018, Commerce published its preliminary countervailing duty determination concerning India. Polytetrafluoroethylene Resin from India , 83 Fed. Reg. 9842 (Dep't Commerce Mar. 8, 2018) (preliminary determination). On April 30, 2018, Commerce published its preliminary antidumping duty determinations. Polytetrafluoroethylene Resin from the People's Republic of China , 83 Fed. Reg. 20039 (Dep't Commerce May 7, 2018) ; Polytetrafluoroethylene Resin from India , 83 Fed. Reg. 20035 (Dep't Commerce May 7, 2018) (preliminary determination). On May 14, 2018, Commerce published its final countervailing duty determination. Polytetrafluoroethylene Resin from India , 83 Fed. Reg. 23422 (Dep't Commerce May 21, 2018). On July 6, 2018, the Commission published its final negative determination with respect to subsidized imports from India. Polytetrafluoroethylene Resin from India , 83 Fed. Reg. 32150 (Int'l Trade Comm'n July 11, 2018) ; Views of the Commission (Final), CD 321 (Int'l Trade Comm'n July 6, 2018), ECF No. 33-1 ("Views "). On September 26, 2018, Commerce published its final antidumping duty determinations concerning China and India. Polytetrafluoroethylene Resin from the People's Republic of China , 83 FR 48590 (Dep't Commerce September 26, 2018) ; Polytetrafluoroethylene Resin from India , 83 FR 48594 (Dep't Commerce September 26, 2018). On November 13, 2018, the Commission published its final negative determination with respect to dumped imports from China and India. Polytetrafluoroethylene (PTFE) Resin from China and India , 83 Fed. Reg. 51501 (Int'l Trade Comm'n Oct. 11, 2018) ; Views of the Commission (Final), CD 324 (Int'l Trade Comm'n Nov. 13, 2018).²

Plaintiff challenges the following findings of the Commission: (1) the definition of domestic industry included processors of PTFE; (2) the volume of the subject imports, while significant, fluctuated "in tandem" with demand; (3) the prices of the subject imports brought pervasive underselling that (a) did not cause a shift in the domestic industry's market share, (b) did not cause significant price depression or price suppression, and (c) continued through the final quarter of the period of investigation ("POI"); (4) the subject imports did not significantly impact the domestic industry; and, (5) the domestic industry was not threatened with material injury. Pl. Br. at 9-12, 34.

This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c).

STANDARD OF REVIEW

This Court is required to assess the factual and legal findings underpinning the Commission's determinations and "hold unlawful any determination, finding or conclusion ... unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 USC § 1516a(b)(1)(B)(i). The substantial evidence standard is both limited and deferential. "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, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938) ). Substantial evidence is "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an agency's finding from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). See also ITG Voma Corp. v. U.S. Int'l Trade Comm'n, 41 CIT ––––, ––––, 253 F. Supp. 3d 1339, 1347 (2017), aff'd , 753 Fed. App'x 913 (Fed. Cir. 2019).

The court's review of a Commission determination is limited to the administrative record. 19 U.S.C. § 1516a(b)(1)(B)(i). This Court must consider "the record as a whole, including evidence that supports as well as evidence that ‘fairly detracts from the substantiality of the evidence.’ " Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting Atlantic Sugar, Ltd. v. United States , 744 F.2d 1556, 1562 (Fed. Cir. 1984) ). To provide a reasoned explanation, the Commission must "make the necessary findings and have an adequate evidentiary basis for its findings" and "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." In re NuVasive, Inc., 842 F.3d 1376, 1382 (Fed. Cir. 2016) (internal citations omitted).

DISCUSSION

Under the Tariff Act of 1930, the Commission is charged with determining whether a domestic industry is materially injured or threatened with material injury by reason of unfairly subsidized or dumped imports. 19 U.S.C. § 1671d(b)(1) ; 19 U.S.C. § 1673d(b)(1). The Commission will issue an affirmative determination if it finds "present material injury or a threat thereof" and makes a "finding of causation." Hynix Semiconductor, Inc. v. United States , 30 C.I.T. 1208, 1210, 431 F. Supp. 2d 1302, 1306 (2006) (citation and quotation marks omitted). "Material injury" is defined as "harm [to the domestic industry] which is not inconsequential, immaterial, or unimportant." 19 U.S.C. § 1677(7)(A).

In making a material injury determination, the Commission evaluates: (1) the volume of subject imports; (2) the price effects of subject imports on domestic like products; and, (3) the impact of subject imports on the domestic producers of domestic like products in determining whether there is material injury, or threat of material injury, by reason of the subject imports. 19 U.S.C. § 1677(7)(B)(i)(I)-(III).

I. Domestic Industry

The Tariff Act of 1930 defines "industry" as "the producers as a whole of a domestic like product, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of the product." 19 U.S.C. § 1677(4)(A).

In the present investigations, the Commission defined the "domestic like product" as all domestically manufactured products corresponding to the imports within the scope of the investigations, including PTFE in granular, dispersion and fine powder forms. Views at 7.³ Plaintiff does not challenge the Commission's definition of the like product. See Pl. Br. at 6.

The Commission in turn defined the domestic industry to include not only the two integrated chemical manufacturers of PTFE (The Chemours Company FC, LLC and Daikin America Inc.), but also six⁴ domestic processors of PTFE.⁵ Views at 20. The Commission applied a multi-factor test in reaching its determination, examining: (1) the source and extent of the firm's capital investment; (2) technical expertise; (3) value added to the product in the United States; (...