OCTAL Inc. v. United States

• Decision Date: 30 September 2021
• Docket Number: Slip Op. 21-133,Court No. 20-03698
• Citation: 539 F.Supp.3d 1291
• Parties: OCTAL INC., and OCTAL SAOC-FSZ, Plaintiffs, v. UNITED STATES, Defendant, and Advanced Extrusion, Inc., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

539 F.Supp.3d 1291

OCTAL INC., and OCTAL SAOC-FSZ, Plaintiffs,

v.UNITED STATES, Defendant,andAdvanced Extrusion, Inc., et al., Defendant-Intervenors.

Slip Op. 21-133

Court No. 20-03698

United States Court of International Trade.

September 30, 2021

Daniel L. Porter and James P. Durling, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., argued for plaintiffs OCTAL Inc. and OCTAL SAOC-FSZ. With them on the brief were James Beaty and Ana Amador.

Jason F. Miller, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, D.C., argued for defendant United States. With him on the brief were Dominic L. Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation.

Brooke M. Ringel and Paul C. Rosenthal, Kelley Drye & Warren LLP, of Washington, D.C., argued for defendant-intervenors Advanced Extrusion, Inc., Ex-Tech Plastics, Inc. and Multi-Plastics Extrusions, Inc. With them on the brief were Kathleen W. Cannon and Elizabeth C. Johnson.

OPINION

Reif, Judge:

Before the court is a U.S. Court of International Trade ("USCIT") Rule 56.2 motion for judgment on the agency record filed by plaintiffs OCTAL SAOC-FSZ ("OCTAL SAOC"), the sole producer/exporter of subject merchandise from Oman, and OCTAL Inc., the sole importer of subject merchandise from Oman (collectively, "OCTAL" or "plaintiffs"). See Pls.’ Br. in Supp. of Mot. for J. on Agency R. ("Pls. Br."), ECF No. 25. By its motions, plaintiffs contest the final affirmative material injury determination by the U.S. International Trade Commission ("Commission") in its antidumping duty investigation of polyethylene terephthalate ("PET") sheet from the Republic of Korea ("Korea") and the Sultanate of Oman ("Oman"). See Polyethylene Terephthalate (PET) Sheet From Korea and Oman (Sept. 10, 2020) ("Final Injury Determination"), PR 140; see also the accompanying views of the Commission in Polyethylene Terephthalate (PET) Sheet from Korea and Oman : Investigation Nos. 731-TA-1455 and 731-TA-1457 (Final) (Sept. 2020) ("Views"), CR 403, PR 141.

The Commission opposes plaintiffs’ motion and asks the court to sustain the Commission's Final Injury Determination. Def.’s Opp'n to Pl.’s Mot. for J. on Agency R. ("Def. Br."), ECF No. 28.

Defendant-intervenors, Advanced Extrusion, Inc., Ex-Tech Plastics, Inc. and Multi-Plastics Extrusions, Inc., join the Government in opposing plaintiffs’ motion. See Def.-Intervenors’ Resp. in Opp'n to Pls.’ Mot. for J. on Agency R., ECF No. 29.

For the reasons set forth below, the court sustains the Final Injury Determination.

BACKGROUND

On August 19, 2019, the U.S. Department of Commerce ("Commerce") initiated antidumping investigations on PET sheet from Oman and Korea in response to petitions filed by the U.S. domestic industry on July 9, 2019. See Polyethylene Terephthalate Sheet from the Republic of Korea, Mexico, and the Sultanate of Oman: Initiation of Less-Than-Fair-Value Investigations , 84 Fed. Reg. 44,854 (Dep't of Commerce Aug. 27, 2019).

On September 13, 2019, the Commission issued its preliminary injury determinations finding that there was a "reasonable indication that an industry in the United States is materially injured by reason of imports of [PET] sheet from Oman and Korea ...." Polyethylene Terephthalate (PET) Sheet from Korea, Mexico, and Oman , USCIT Pub. 4970, Inv. Nos. 731-TA-1455-1457 (Preliminary) (Sept. 2019) ("Preliminary Injury Determination") at 1.

On February 25, 2020, Commerce published its affirmative preliminary determinations in the antidumping duty investigations of imports of PET from Korea and Oman. Polyethylene Terephthalate Sheet From the Republic of Korea: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures , 85 Fed. Reg. 12,500 (Dep't of Commerce Mar. 3, 2020) ; Polyethylene Terephthalate Sheet From the Sultanate of Oman: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures , 85 Fed. Reg. 12,513 (Dep't of Commerce Mar. 3, 2020). On July 16, 2020, Commerce announced its affirmative final determinations in the antidumping duty investigations of imports of PET from Korea and Oman, determining that PET was being sold at less than fair value and finding dumping margins ranging 7.19 to 52.01 percent for subject imports from Korea, and a dumping margin of 4.74 percent for subject imports from Oman. See Polyethylene Terephthalate Sheet from the Republic of Korea: Final Determination of Sales at Less Than Fair Value , 85 Fed. Reg. 44,276, 44,277 (Dep't of Commerce July 22, 2020) ; Polyethylene Terephthalate Sheet from the Sultanate of Oman: Final Determination of Sales at Less Than Fair Value , 85 Fed. Reg. 44,278 (Dep't of Commerce July 22, 2020).

On September 3, 2020, the Commission issued its unanimous conclusion that subject imports of PET sheet from Korea and Oman, which were sold at less than fair value, materially injured the domestic industry in the United States. Final Injury Determination; Views at 3. The Commission published its Final Injury Determination in the Federal Register on September 10, 2020. See Final Injury Determination.

STANDARD OF REVIEW

The court has jurisdiction pursuant to section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2018), and 28 U.S.C. § 1581(c) (2018).¹ 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 U.S.C. § 1516a(b)(1)(B)(i). The Supreme Court has defined "substantial evidence" as being "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (citation omitted). "The ‘whole record’ means that the Court must consider both sides of the record. It is not sufficient to merely examine the evidence that sustains the agency's conclusion." Timken Co. v. United States , 12 CIT 955, 962, 699 F. Supp. 300, 306 (1988) (citing Universal Camera Corp. v. NLRB , 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ).

In reviewing the whole record, "[i]t is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Id. (citing Matsushita Elec. Indus. Co. v. United States , 750 F.2d 927, 933 (Fed. Cir. 1984) ). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent the court from holding that the 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 op. , 753 F. App'x 913 (Fed. Cir. 2019).

LEGAL FRAMEWORK

The Commission is charged under the Tariff Act of 1930 with determining whether a U.S. domestic industry is "materially injured" or is "threatened with material injury ... by reason of" unfairly dumped or subsidized imports. 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). "There are two components to an affirmative material injury determination: ‘a finding of present material injury or a threat thereof, and a finding of causation.’ " Hynix Semiconductor, Inc. v. United States , 30 CIT 1208, 1210, 431 F. Supp. 2d 1302, 1306 (2006). "Material injury" is defined as "harm which is not inconsequential, immaterial, or unimportant." 19 U.S.C. § 1677(7)(A). A finding of causation requires that the Commission conclude that the material injury to the domestic industry is "by reason of [the subject] imports." Id. § 1677(7)(B)(ii) ; see also ITG Voma Corp. , 41 CIT at ––––, 253 F. Supp. 3d at 1348 ("The Court of Appeals for the Federal Circuit has interpreted the ‘by reason of’ statutory language to require the Commission to consider the volume of subject imports, their price effects, their impact on the domestic industry, and to establish whether there is a causal connection between the imported goods and the material injury to the domestic industry." (citing Swiff-Train Co. v. United States , 793 F.3d 1355,1361 (Fed. Cir. 2015) )).

In making its preliminary and final determinations the Commission is required to consider:

(I) the volume of imports of the subject merchandise,

(II) the effect of imports of that merchandise on prices in the United States for domestic like products, and

(III) the impact of imports of such merchandise on domestic producers of domestic like products, but only in the context of production operations within the United States ....

19 U.S.C. § 1677(7)(B)(i)(I)-(III). The Commission is permitted to consider also "such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports." Id. § 1677(7)(B)(ii). This Court and the U.S. Congress have been clear that "[n]o single factor is dispositive and ‘the significance to be assigned to a particular factor is for the [Commission] to decide.’ " ITG Voma Corp. , 41 CIT at ––––, 253 F. Supp. 3d at 1348 (quoting S. Rep. No. 96-249, at 88 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 474).

"To provide a reasoned explanation [in its determinations], 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.’ " Chemours Co. FC, LLC v. United States , 44 CIT ––––, ––––, 443 F. Supp. 3d 1315, 1321 (2020) (quoting In re NuVasive, Inc. , ...