DAK Ams. LLC v. United States

• Decision Date: 03 May 2021
• Docket Number: Slip Op. 21-52,Court No. 18-00238
• Citation: 517 F.Supp.3d 1349
• Court: U.S. Court of International Trade
• Parties: DAK AMERICAS LLC, Indorama Ventures USA, Inc., and Nan Ya Plastics Corporation, America, Plaintiffs, v. UNITED STATES, Defendant, and Novatex Limited, G-Pac Corporation, Niagara Bottling, LLC, and iResin, LLC, Defendant-Intervenors.

517 F.Supp.3d 1349

DAK AMERICAS LLC, Indorama Ventures USA, Inc., and Nan Ya Plastics Corporation, America, Plaintiffs,

v. UNITED STATES, Defendant,andNovatex Limited, G-Pac Corporation, Niagara Bottling, LLC, and iResin, LLC, Defendant-Intervenors.

Court No. 18-00238

Slip Op. 21-52

United States Court of International Trade.

May 3, 2021

Paul C. Rosenthal, Kathleen W. Cannon, and Brooke M. Ringel, Kelly Drye & Warren, LLP, of Washington, DC, for plaintiffs.

Brian R. Allen, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for defendant. With him on the brief were Dominic L. Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Brenda A. Jacobs, Jacobs Global Trade & Compliance LLC, of McLean, VA, for defendantintervenors, Novatex Limited and G-PAC Corporation. With her on the joint brief was Neil R. Ellis, Law Offices of Neill Ellis PLLC, of Washington, DC.

John M. Peterson, Neville Peterson LLP, of New York, NY, argued for defendant-intervenor, Niagara Bottling, LLC. With him on the brief were Richard F. O'Neill and Patrick B. Klein.

Susan G. Esserman, Joel D. Kaufman, Luke M. Tillman, and Judy (Zhu) Wang, Steptoe & Johnson LLP, of Washington, DC, for defendant-intervenor, iResin, LLC.

OPINION

Katzmann, Judge:

In its prior opinion in this case, the court, noting the Aristotelian maxim that "like cases should be treated alike," observed that consistency is a core value of administrative law. DAK Americas LLC v. United States, 44 CIT ––––, ––––, 456 F. Supp. 3d 1340, 1346 (2020) (" DAK Americas I") (citations omitted). "[T]hough past agency decision-making may not be precedential in the same way as case law through stare decisis, it remains of great importance." Id. at 1355 (footnote omitted). The court's concern that "reasoned decision-making come to bear" on agency determinations impels that the agency explain its departure from prior determinations, insofar as there has been such a departure. Id. at 1356.

The court now returns to the material injury investigation by the International Trade Commission ("Commission") on the effects of imports of PET resin -- a polyester polymer (i.e. plastic) material used to make many common products, including bottles -- on the U.S. domestic industry. Before the court is the Commission's Remand Views, Views of the Commission, Sept. 23, 2020, ECF No. 117 ("Remand Views"), which the court ordered in DAK Americas I, so that the Commission could further explain certain aspects of its negative injury determination in accordance with the court's instructions. On remand, the Commission again determined that the U.S. PET resin industry is not injured or threatened with material injury by PET resin imports sold at less than fair value. Remand Views at 1. Plaintiffs DAK Americas LLC ("DAK"), Indorama Ventures USA, Inc. ("Indorama"), and Nan Ya Plastics Corporation ("Nan Ya") (collectively, "Plaintiffs") again challenge the Commission's decision. Pls.’ Cmts. on the Int'l Trade Commission's First Remand Determination, Oct. 23, 2020, ECF No. 121 ("Pls.’ Br."). Defendant the United States ("Government") and Defendant-Intervenors Novatex Limited, G-Pac Corporation, iResin, LLC, and Niagara Bottling, LLC (collectively, "Defendant-Intervenors") request that the court affirm the Commission's Remand Views. Def. United States’ Resp. to Pls.’ Cmts. on Remand, Nov. 23, 2020, ECF No. 130 ("Def.’s Br."); Corr. Version of Reply of Def.-Inters., Novatex Ltd. and G-Pac Corp., to Pls.’ Cmts. on the Remand Determinations of the U.S. Int'l Trade Commission, Nov. 24, 2020, ECF No. 133 ("Novatex's Br."); Rebuttal Cmts. of Def.-Inter., Niagara Bottling, LLC, Nov. 23, 2020, ECF No. 132 ("Niagara's Br."); Reply Br. of Def.-Inter. iResin in Resp. to Pls.’ Cmts. on the Remand Determination of the Int'l Trade Commission, Nov. 24, 2020, ECF No. 135 ("iResin's Br."). The court affirms.

BACKGROUND

The court set out the relevant legal and factual background of the proceedings in further detail in its previous opinion, DAK Americas I, 456 F. Supp. 3d at 1347–52. Information relevant to the instant opinion is set forth below.

Plaintiffs, U.S. producers of PET resin, filed antidumping petitions with the Commission after subject imports surged following the 2015 imposition of remedial duties on PET resin imports from Canada, China, India, and Oman. See Petition for the Imposition of Antidumping Duties: Imports of Certain Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan, Sept. 26, 2017, P.R. 1. The Commission defined the period of investigation ("POI") as the first quarter of 2015 through the first quarter of 2018. See Confidential Views of the Commission in Polyethylene Terephthalate Resin from Brazil, Indonesia, Korea, Pakistan, and Taiwan: Investigation. Nos. 731-TA-1387–91 (Final) at 4, USITC Pub. 4835 (Nov. 2018), P.R. 209, C.R. 342 ("Original Views"). The Commission found that the U.S. PET resin market was price-sensitive and characterized by product fungibility, that the subject imports’ market share gains came at the same time as the domestic industry lost market share, and that the domestic industry suffered a decline in financial condition during the POI. Id. at 29–30, 45–46. The Commission nevertheless concluded: (1) the underselling that occurred was not significant, based upon both indirect pricing reports that showed overselling was more prevalent and purchasers’ reports that showed supply shortages as the cause of domestic market share losses; and (2) the subject imports did not have a significant adverse impact on the domestic industry. Id. at 50–55.

Plaintiffs challenged that determination before the court. See Compl., Dec. 26, 2018, ECF No. 9. Plaintiffs moved for judgment on agency record, arguing that: (1) the Commission failed to explain why the underselling on the record was not significant in light of prior Commission and court decisions finding mixed underselling significant; (2) the Commission's determination that subject imports predominantly oversold domestic product was not supported by substantial evidence because the Commission excluded several points of conflicting evidence; (3) the Commission's finding that domestic supply constraints explain the subject import surge is not supported by substantial evidence because the record indicates supply constraints solely manifested from October 2016 onwards; and (4) the aforementioned errors make the Commission's ultimate no adverse impact determination unsupported by substantial evidence. DAK Americas I, 456 F. Supp. 3d at 1353. The court granted Plaintiffs’ motion and remanded the Commission's determination for further explanation and a decision based on substantial evidence. Id.

On remand, the three Commissioners who participated in the original determination and two Commissioners who were not on the Commission at the time of the original determinations re-examined the case and unanimously came to the same conclusions as in the Original Views. Remand Views at 3 n.7. The Commission provided further explanation and analysis of the record evidence underlying its determination but did not change its ultimate conclusions that there was no significant underselling and no adverse impact on the domestic industry. See Remand Views at 1. The Commission filed its Remand Views with the court on September 23, 2020. See Remand Views.¹ Plaintiffs filed their comments on the Remand Views on October 23, 2020. Pls.’ Br. The Government and Defendant-Intervenors filed replies to these comments on November 23, 2020. Def.’s Br.; Novatex's Br.; Niagara's Br.; iResin's Br.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction to review negative material injury determinations by the Commission under 19 U.S.C. § 1561a(a)(1)(C). The court will hold unlawful those agency determinations which are unsupported by substantial evidence on the record or otherwise not in accordance with law under 19 U.S.C. § 1516a(b)(1)(B)(i). A decision based on substantial evidence and in accordance with law includes an examination of the record and an adequate explanation for an agency's findings such that the record demonstrates a rational connection between the facts accepted and the determination made. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Substantial evidence includes "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Nippon Steel Corp. v. United States, 458 F.3d 1345, 1358 (Fed. Cir. 2006) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477–78, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ). The court must defer to the Commission's role as trier of fact and not disturb its "considerable discretion in evaluating information obtained from questionnaires." Int'l Indus. v. United States, 42 CIT ––––, ––––, 311 F. Supp. 3d 1325, 1333 (2018) (quoting NSK Corp. v. United States, 32 C.I.T. 966, 978, 577 F. Supp. 2d 1322, 1336–37 (2008) ); see also Coal. of Gulf Shrimp Indus. v. United States, 39 CIT ––––, ––––, 71 F. Supp. 3d 1356, 1365 (2015) (stating that as part of its selection of methodology, the Commission "has discretion to select a data set that it will use in its investigation"); Goss Graphic Sys. v. United States, 22 C.I.T. 983, 1004, 33 F. Supp. 2d 1082, 1100 (1998), aff'd, 216 F.3d 1357 (Fed. Cir. 2000). "[W]hen the totality of the evidence does not illuminate a black-and-white answer to a dispute[ ]," the court defers to the Commission as "the expert factfinder ... to decide which side's evidence to believe." Nippon Steel Corp., 458 F.3d at 1359. The court also reviews remand results for compliance with its remand order. See Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT ––––, ––––, 968 F. Supp. 2d 1255, 1259 (2014).

DISCUSSION

On remand, the court ordered the Commission to provide further explanation of its...