Itg Voma Corp. v. U.S. Int'l Trade Comm'n

Decision Date28 July 2017
Docket NumberConsol. Court No. 15-00255, Slip Op. 17-93.
Citation253 F.Supp.3d 1339
Parties ITG VOMA CORPORATION, Plaintiff, and China Rubber Industry Association and Sub–Committee of Tire Producers of the China Chamber of Commerce of Metals, Minerals & Chemical Importers, Consolidated Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC, Defendant–Intervenor.
CourtU.S. Court of International Trade

Jonathan Thomas Stoel, Hogan Lovells US LLP, of Washington, DC, argued for Plaintiff ITG Voma Corporation. With him on the brief were Craig Anderson Lewis and Sean–Michael Lawrence Carlesimo.

Ned Herman Marshak, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington, DC and New York, NY, argued for Consolidated Plaintiffs China Rubber Industry Association and Sub–Committee of Tire Producers of the China Chamber of Commerce of Metals, Minerals & Chemical Importers. With him on the brief were Bruce M. Mitchell, Andrew Thomas Schutz, and Max F. Schutzman.

Courtney Sheehan McNamara, Attorney Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington DC, argued for Defendant United States. With her on the brief were Dominic L. Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Elizabeth Jackson Drake, Stewart and Stewart, of Washington, DC, argued for DefendantIntervenor United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC. With her on the brief were Philip Andrew Butler and Terence Patrick Stewart.

OPINION

Choe–Groves, Judge:

This consolidated action involves passenger vehicle and light truck ("PVLT") tires. PVLT tires are new pneumatic tires made of rubber, with a passenger vehicle or light truck designation. Tires covered by this case include tube-type, tubeless, radial, or non-radial tires that are intended for sale to original equipment manufacturers or the replacement market. See Majority and Dissenting Views at 6, CD 440, Doc. No. 562493 (Aug. 5, 2015) ("Commission Views"). The matter before the court challenges the final material injury determination of the U.S. International Trade Commission ("Defendant," "ITC," or "Commission") in the antidumping and countervailing duty investigations of certain passenger vehicle and light truck ("PVLT") tires from the People's Republic of China ("China"). See Certain Passenger Vehicle and Light Truck Tires From China, 80 Fed. Reg. 47,000, 47,000 (Int'l Trade Comm'n Aug. 6, 2015) ; see also Certain Passenger Vehicle and Light Truck Tires From China, USITC Pub. 4545 at 1–45, Inv. Nos. 701–TA–522 and 731–TA–1258 (Aug. 2015), available at https://www.usitc.gov/publications/701_731/pub4545.pdf (last visited July 10, 2017) (" USITC Pub. 4545"); Commission Views at 3–67.

Before the court are Rule 56.2 motions for judgment on the agency record filed by Plaintiff ITG Voma Corporation ("ITG Voma") and Consolidated Plaintiffs China Rubber Industry Association and the Sub–Committee of Tire Producers of the China Chamber of Commerce of Metals, Minerals & Chemical Importers (collectively, "CRIA"). See Pl.'s Rule 56.2 Mot. J. Agency R., Feb. 16, 2016, ECF No. 37; Pls. Rule 56.2 Mot. J. Agency R., Feb. 16, 2016, ECF No. 38. ITG Voma and CRIA contend that the Commission's final determination that imports of PVLT tires from China have materially injured the U.S. PVLT tire industry was unsupported by substantial evidence and not in accordance with the law. See Pl. ITG Voma's Mem. P. & A. in Supp. Rule 56.2 Mot. J. Agency R., Feb. 16, 2016, ECF No. 37–1 ("ITG Voma Rule 56.2 Br."); Br. in Supp. Pls. Rule 56.2 Mot. J. Agency R., Feb. 16, 2016, ECF No. 38 ("CRIA Rule 56.2 Br.").

The ITC and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL–CIO, CLC ("USW" or "DefendantIntervenor") oppose the Rule 56.2 motions and request that the court sustain the Commission's final determination. See Def. Int'l Trade Comm'n's Opp'n Pls.' Mots. J. Agency R., May 2, 2016, ECF No. 51 ("Def. Resp. Br."); Def.–Intervenor United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL–CIO, CLC's Opp'n Pls.' Mots. J. Agency R., June 2, 2016, ECF No. 57.

For the reasons set forth below, the court sustains the Commission's final determination and denies the motions for judgment on the agency record.

BACKGROUND

USW filed antidumping and countervailing duty petitions with the ITC and the U.S. Department of Commerce ("Commerce") on June 3, 2014, alleging that the domestic industry had been materially injured or threatened with material injury from imports of Chinese PVLT tires that benefitted from countervailable subsidies and were sold at less than fair value. See Staff Report Investigation Nos. 701–TA–522 and 731–TA–1258 (Final) at I–1, CD 429, Doc. No. 560025 (July 2, 2015) ("Staff Report"). The ITC and Commerce instituted antidumping and countervailing duty investigations.1 See Certain Passenger Vehicle and Light Truck Tires From China, 79 Fed. Reg. 32,994 (Int'l Trade Comm'n June 9, 2014) (institution of antidumping and countervailing duty investigations and scheduling of preliminary phase investigations); Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China, 79 Fed. Reg. 42,285 (Dep't Commerce July 21, 2014) (initiation of countervailing duty investigation); Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China, 79 Fed. Reg. 42,292 (Dep't Commerce July 21, 2014) (initiation of antidumping duty investigation).

Commerce completed its antidumping and countervailing duty investigations in June 2015. See Antidumping Duty Investigation of Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China, 80 Fed. Reg. 34,893 (Dep't Commerce June 18, 2015) (final determination of sales at less than fair value) ("AD Final Determination"); Countervailing Duty Investigation of Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China, 80 Fed. Reg. 34,888 (Dep't Commerce June 18, 2015) (final affirmative determination) ("CVD Final Determination"). Commerce found that the subject PVLT tires were being, or were likely to be, sold at less than fair value and calculated final dumping margins ranging from 14.35 percent to 87.99 percent. See AD Final Determination, 80 Fed. Reg. at 34,893 –96. Commerce also found that producers and exporters of PVLT tires from China were being provided with countervailable subsidies and calculated final countervailing duty rates ranging from 20.73 percent to 100.77 percent. See CVD Final Determination, 80 Fed. Reg. at 34,888–89.

The ITC published its final material injury determination in August 2015 after completing its investigation. See Certain Passenger Vehicle and Light Truck Tires From China, 80 Fed. Reg. at 47,000. The period of investigation spanned January 1, 2012 through December 31, 2014. See Commission Views at 4. Based on the information obtained during the investigation,2 an evenly divided Commission determined that an industry in the United States had been materially injured by reason of imports of PVLT tires from China that Commerce found to be sold at less than fair value and subsidized by the government of China.3 See Certain Passenger Vehicle and Light Truck Tires From China, 80 Fed. Reg. at 47,000; USITC Pub. 4545 at 1–45 ; Commission Views 3–67.

The ITC began its injury analysis by defining the domestic product that is like or most similar to the imported PVLT tires and then identifying the industry responsible for producing the domestic like-product. See Commission Views at 5–20. PVLT tires range from 13 to 26 inches in diameter and are designed for use on standard-type passenger cars, sport utility vehicles, multipurpose passenger vehicles, or light trucks. See id. at 8 (citing Staff Report at I–16–I–17). The Commission's definition of the domestic like-product was coterminous with the scope of the imported PVLT tires subject to the investigations, which was described by Commerce as "new pneumatic tires, of rubber, with a passenger vehicle or light truck size designation" that "may be tube-type, tubeless, radial, or non-radial, and they may be intended for sale to original equipment manufacturers [ ("OEM") ] or the replacement market."4 Id. at 6–11. Three Commissioners found that the domestic industry included all nine U.S. producers of PVLT tires, and the remaining three Commissioners found that the domestic industry included eight of the nine U.S. producers.5 See id. at 11–20.

The Commission assessed the conditions of the U.S. PVLT tire market in its material injury analysis. See id. at 20–35. The Commission observed that domestic consumption of PVLT tires increased from 274.3 million tires in 2012 to 301 million tires in 2014, an overall increase of 9.7 percent during the period of investigation. See id. at 20–21 n.89 (citing Staff Report at Table IV–6). Demand for PVLT tires, particularly for higher-value and larger-diameter PVLT tires, increased due to "a rebounding economy, an increase in the number of miles driven as gasoline prices have declined, and an increase in vehicle sales." Id. at 21 (citing Staff Report at II–25, II–28, II–32). The cost of raw materials used to produce PVLT tires, including natural and synthetic rubber, declined during the period of investigation.6 See id. at 34–35 (citing Staff Report at V–1–V–2 and Figure V–1). China provided the largest source of imported PVLT tires and increased its share of the U.S. PVLT market from 11.5 percent in 2012 to 19.3 percent in 2014. See id. at 23–24 (citing Staff Report at Tables IV–2, IV–3, and IV–6). The Commission found a moderate to high degree of substitutability...

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    ...Commission's determinations, findings, or conclusions are supported by substantial evidence." ITG Voma Corp. v. U.S. Int'l Trade Comm'n , 41 CIT ––––, ––––, 253 F. Supp. 3d 1339, 1347 (2017) (citing Nippon Steel Corp. v. United States , 458 F.3d 1345, 1352 (Fed. Cir. 2006) ), aff'd without ......
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